Humanitarian and legal rupture in maritime lifesaving since 1800

Abstract

This article explores the relationship between moral and legal language as convergent and divergent types of normative order in the long history of saving lives from shipwreck since the late eighteenth century. The author presents an argument about humanitarianism as based on a symbolic rupture within an established moral culture and the law as imposing a second rupture on the resulting humanitarian culture, but a complicated and incomplete one, on account of the fractured nature of law when viewed through the lens of the diverse traditions that can be seen to impinge on the current situation. The nature of this argument, then, is genealogical and relates present normative disorder to earlier lines of development.

In this article, I will outline some of the interrelations between humanitarian morality and maritime law in the context of the saving of lives from shipwreck. As a result of these interrelations, a pluralism of normative orders emerges over time. Various traditions of setting up such orders, including traditions that are incompatible with each other, are actualized over and over again. I will first briefly discuss the context of lifeboat humanitarianism in the early nineteenth century and the moral normative order it sought to establish by breaking with a past of moral neglect – a process I discuss under the label of ‘humanitarian rupture’. I will then detail some of the relations of this movement and its moral practice with maritime law in the nineteenth century. In a third step, I will discuss the early twentieth-century effort to establish an international legal order for the saving of lives from shipwreck and, in particular, the emergence of a duty to rescue and its correlate, the right to be rescued if the means for rescue are available, which at least functionally appears to fit the mould of an actual human right. This process imposes a second rupture – a legal one – on the moral norms in place. Various traditions of jurisprudence informed this ‘legal rupture’, however, and resulted in a situation of legal plurality and even disorder, which continues to have a profound effect on the understanding of maritime emergency and responses to it. At the same time, the established humanitarian understanding of the imperative to save lives from shipwreck, in disregard of one's own risk, also remains in place as a moral norm. In addition, amid the legal disorder, novel humanitarianisms for saving lives at sea have emerged. The insulating force of the single-issue movement in humanitarianism aligns with the insulating force of divergent traditions of legal thought. This overall line of development is arguably symptomatic of a history of normativity across the late modern period. It opens a vista onto what one might consider a mixed, and equally messy, understanding of sovereignty, one of the functions of which is the institution of multiple normative orders in legal, political and moral terms. In the end, the core of sovereignty is not being the locus of political decision, but the force that sets normative orders, and this force appears beholden to a history of what one might label the ‘differentiation’, or the tumbling over each other, of the languages of normativity.

Humanitarian ruptures

Humanitarianism can be understood as an aggregation of interconnected yet distinct social movements for responding to various types of ‘suffering at a distance’, as Luc Boltanski handily puts it, drawing on eighteenth-century moral theorists. ¹ Humanitarian movements – the philanthropic movement for the abolition of slavery remains the best-known and arguably earliest paradigm – are based on a gesture of disrupting a given moral common sense, typically one to do with the perceived impossibility of remedying a certain ill and of transcending a proximal zone of practical application. ² It is possible that such movements are based on a notion of complicity and indirect guilt, as Thomas Haskell argues for the case of abolitionism, in which the causal connection between the consumption of colonial goods and the system of chattel slavery was a prime motivating force. ³ But as the humanitarian cause of lifeboat organizations suggests, guilt does not have to be the primary driver. Saving the shipwrecked, no matter the personal risk, was established as an imperative without a strong sense that those who had in the past failed to provide aid were directly implicated in the misfortune at hand. Nonetheless, the practice that a humanitarian imperative was designed to overcome was always marked as deficient and corrupt. The legendary practice of setting ‘false lights’ for provoking shipwreck was used to morally stigmatize coastal dwellers everywhere in Europe and in many places elsewhere. ⁴ The much more palpable practice of profiting from wreckage washing ashore, and of unregulated salvage or ‘wrecking’, was also frequently blamed for coastal indifference towards the shipwrecked. ⁵ Yet coastal populations were also open to, and familiar with, the moral argument that lifesaving was to take precedence, even if the hunt for flotsam and wreckage continued to exist alongside it. ⁶ The older practice had thus long contained the potential for disruption.

Humanitarian moral languages usually follow a pattern of breaking with a past of opportunism, permissiveness and inconsistency of judgment. These features are negated and supposedly replaced with a practice marked by consistent and ostentatious rectitude. Thomas Laqueur has provided a forceful account of the rise of a culture of sympathy at a distance through the nexus of an expanding discourse of empiricism, especially medical, with regard to the suffering and disintegration of bodies alive and dead, and the literary poetics of sympathy in particular in the newly dominant prose genre of the novel. ⁷ The involvement of detailed observation as an epistemic culture, in particular, indicates that humanitarianism was a phenomenon related to the way the production and systematization of scientific knowledge was being restructured. Humanitarian movements seem unfailingly to rely on this template of a rupture with the past. This template is akin to the manner in which, according to Gaston Bachelard, scientific knowledge is attained by breaking with common beliefs and everyday knowledge through what he calls ‘epistemological rupture’. ⁸ Bachelard's argument is not least directed against easy assumptions of the systematic unity of scientific knowledge. Any given body of scientific knowledge carries a memory of what it broke with, of what it negated, and the ruptures do not have to be compatible with one another to form a unified body of knowledge or practice.

Reliance on this template is the chief reason for humanitarianism to form an archipelagic topography of single-issue movements. These issues are defined not simply by the type of emergency situation and suffering they address, but also by the specific set of accepted moral judgments they set out to discard. ⁹ I believe that this pattern of what one might call ‘humanitarian rupture’ is a prime force for pluralization in the cultural history of morality in the modern period, through the tie to single issues. This is akin to what Bachelard argues for the sciences: their pattern of disruptiveness, in his view, explains why the sciences failed to form a unified system, unlike what most philosophy of science believed at the time. I contend that the history of humanitarianism supports a similar argument of disunity for morality.

If the history of British abolitionism were accepted as fully paradigmatic for the history of humanitarian movements, it would seem clear enough that legal rights were the primary aim and that morality only had an instrumental function for their pursuit. The abolitionist movement was ever eager to acquit itself of its moral concern, first, by defining its cause exclusively in political terms, which then translated into the passing of certain pieces of legislation. It was a decisive step for British abolitionism to make its way into Parliament, and for this it was necessary to shed the narrow denominational identity the movement had at first displayed – its long-standing association with Quakerism, in particular. In this overcoming of denominational identities, it arguably provided an influential model – many, though hardly all, humanitarian organizations ostentatiously jettisoned their dependence on an individual religious grouping. Older religious networks remained important for the emergence and spread of humanitarian causes. ¹⁰ Yet other philanthropic networks were also required for the cultural form of the humanitarian movements to become widespread, and in terms of the intellectual history of this form of practical morality, the centrality of human suffering and the lack of concern with matters of the afterlife and eschatology indicates that religious charity was one of the things with which at least some humanitarian actors sought to break. ¹¹ It may have been the case that the relative secularity of certain early humanitarianisms, especially in Britain and the Netherlands, was an entirely contingent artefact of the specific coalition that emerged in British abolitionism and then spilled over into, and provided a model for, other movements, also internationally, with other single issues at their core. Regardless, the many subsequent religious humanitarianisms have all had to grapple with the relative, contingent and often unreflected secularity settled into this particular moral discourse in the late eighteenth century. The normative order of religious precepts was waning.

In a similarly diffuse manner, many, but not all, of these movements set their primary targets in politicization and legislation. It seems important, however, to point out that the history of humanitarianism does not, as has often been argued, coincide with a history of the emergence of human rights. ¹² Instead, in my view, humanitarianism ought to be discussed in terms of moral, not legal, culture and with a view to the historical complexity of normative language and practice. ¹³ Lifeboat movements, for instance, had only very rudimentary legal agendas and, for the most part, meticulously avoided alignment with specific political parties and ideologies. ¹⁴ Moreover, legislation often marks a moment of built-in redundancy in humanitarian pursuits. British abolitionism is a poignant example. Once legal emancipation was achieved in 1834, the movement flagged. In fact, it had flagged before and then had to be revived after the achievement of its first great goal – the outlawing of the maritime slave trade in 1807 – which led to a far-reaching system of intergovernmental treaties and generated a novel body of international maritime law. ¹⁵ In the United States, the well-known history of legal discrimination after the abolition of slavery in 1863 repeated this pattern of relative humanitarian disengagement after legislative success. The transfer into the legally dominated form of parliamentary politicization, then, appears to be the point at which the realm of humanitarian moral norms ceases to resemble the domain of scientific knowledge: humanitarian morality can be subjected to a second kind of rupture – that of legislation.

Lifeboat humanitarianism and the silence of the law

The history of lifeboat humanitarianism differs from the legislation-driven pattern of abolitionism. The saving of lives from shipwreck had an exceptionally long run as a matter that was left purely to the normative order of humanitarian morality before legislation came into the picture. The founding pamphlet of the ‘national’ lifeboat movement in Britain, authored by William Hillary in 1823, contains the insistence that lifesaving always has to take precedence over any other kind of assistance or salvage work. ¹⁶ This is a significant detail because it is a precise determination of the pertinence of moral imperatives beyond what the law regulates. The pamphlet presents its moral argument already with a view to the law and its assumed limitations. Yet there is no sense that the law will at some point in the future intervene to sort out the practical domain of rescuing lives from shipwreck. The humanitarian organization founded upon this principle in 1824, which since 1854 has been known as the Royal National Lifeboat Institution, continues to adhere to this norm. ¹⁷

In the nineteenth century, legal treatises on maritime law usually state that lifesaving at sea can only be regarded as a matter of ‘natural law’ (by which, at this point, lawyers mostly appear to mean a dead zone where positive legislation cannot persist). ¹⁸ This notion emerges from a longer tradition. The French Ordonnance de la Marine of 1681, while formulating an imperative of rescue for French coastal waters, for instance, already makes the same point when it states that ‘the sentiments of nature’ should suffice, ‘if one does not have Christian charity’, for regarding it as a duty to rescue the shipwrecked (whenever possible). ¹⁹ By and large, natural law discourse appears to be the dominant form in which, throughout Europe, lifesaving at sea is recognized as a phenomenon to which the law might have something to say. In practice, this meant that maritime lifesaving was left to the devices of morality. In 1825, the board of the Amsterdam-based Dutch lifeboat organization, the Noord- en Zuid-Hollandsche Redding Maatschappij, points to the distinctness of the moral imperative in a remarkably strongly worded letter to the Dutch king. The society was founded in 1824 and then followed by a counterpart organization in Rotterdam. King William I asked both to merge and form a unified national society such as the one just established across the English Channel. The Amsterdamers refused. Their argumentation is spurious at best: in response to the king's assumption that donations will be more easily won for a broader organization, as all merchant shipping interests will be drawn to paying for the work, the Noord- en Zuid-Hollandsche Redding Maatschappij insists that its work is dedicated to the saving ‘never of goods, of people alone’. All the practical complications that arise from the salvage of goods are to be avoided; people ‘do not pay anything’ and their lives ‘cannot be appraised in percentages’. Merchants focus on commerce and ships rather than individual people. By contrast, ‘in the rescue society solely the human being is taken into account by his fellow human [medemensch]’. ²⁰ Its moral language, then, strongly dissociates salvage and rescue. Ironically, the most palpable reason for which the Amsterdamers refuse to merge with their Rotterdam counterparts is the economic competition between the two ports. So, there is something enduringly complicated about the distinction.

Work on the separation of the moral and legal spheres was diligently pursued; it was circuitously confirmed whenever possible. In 1868–1869, for instance, the shipping authorities of the city republic of Bremen in northern Germany conducted a lengthy investigation of a case in which a Bremen ship had refused help to a partly dismasted US vessel, held above water only by pumps in the Atlantic (the nearest land would have been Bermuda). ²¹ The schooner Jonas Smith of Baltimore, captained by John H. Jergens, had left its home port for Matanzas on 23 November 1867 and had lost its mainmast and incurred significant damage to its foremast and bowsprit in a heavy gale on 29 November. To boot, the ship was found ‘leaking badly, one pump not being able to keep her free’. ²² More drifting than sailing, in continuing foul weather and with the crew constantly operating both pumps, on the morning of 9 December, the schooner encountered the Bremen brig Agnes, captained by Johann Gerhard Siedenburg. The Americans signalled for help and the Agnes passed alongside them. Jergens is quoted as saying:

her captain hailed us; we asked him to stay by us or take us off, as we were in a sinking condition. His first answer was that the sea was too rough. We then put our boat out and he passed again, saying he had no provisions for so many men. He then made sail and left without rendering us any assistance whatever. ²³

Two days later, late at night, the Americans were taken off the Jonas Smith by the British brig Teresita, which was bound for Cienfuegos. At the beginning of January, having returned to the United States, Captain Jergens detailed these circumstances to the press. Bremen had been a sovereign state until it joined the North German Federation in 1866 and was still in the process of fading out its independent diplomatic service. Its general consul in Baltimore, Albert Schumacher, a merchant from a prominent Bremen family, wrote to the authorities about the Siedenburg affair, as he feared reputational damage for Bremen shipping. At this point, the Agnes was still in New York harbour, and Siedenburg was clearly informed about the consul's missive before it was sent, for he wrote to his shipwright on the very same day, 29 January 1868, about the matter. According to Siedenburg, they had found the Jonas Smith lying

as calm and high in the water as she ever could, & more calm and high than our own [ship], and on our estimate she was not lying any deeper than when charged with ballast only, so [we] saw no reason to assume there was water in the ship, we saw that the rudder and the remaining rigging was good and complete and saw no reason why they wanted to abandon ship, especially since they had a good wind (northwest) for Bermuda which they could reach in two to three days, we mainly watched whether they also went for the pumps, which they did not, then I thought that the vessel was probably well insured, and as I saw so many crew on it (8 full men, which is more than the manning for such a vessel) then I feared that they rather were pirates than shipwrecked, and once the former were aboard they were stronger than us and could go with us somewhere in the Bahamas and pretend they had found our ship adrift at sea, so I held counsel with the helmsmen and the crew and decided not to bother any further. ²⁴

Siedenburg accuses the Americans of lying about having been alongside the Agnes in their own ship's boat, and he complains that there has been so much gossip and slander about the matter ‘as if I had killed someone’. According to what he claims to have heard, he is suffering the worst calumny on the part of other Bremen captains in US ports, and he is nurturing plans of responding in the press. However, he is advised to do so only upon leaving the United States, otherwise he will be made to ‘write about it every day’. ²⁵ The tone of the letter amply demonstrates that Siedenburg felt that the matter was serious and the moral reproach severe.

In his official questioning on 20 May 1868, conducted by the bailiff of the small Bremen port town of Vegesack, the first helmsman Lüder Warkmeister confirms that Siedenburg was apprehensive of pirates, but insists that he himself did not feel this fear was well founded, as he had never heard of pirates in the area. He does, however, claim to have shared the impression that the schooner was neither in a sinking state nor making water, and that he too had been convinced it would be able to reach Bermuda in two days’ time. And yet he states that he was conflicted about Siedenburg's decision to abandon the Americans: ‘although it was not right in my opinion, I could no longer be against it, I did not regard those people as in danger, two hours we had watched them and during that time there was no pumping’. ²⁶ He does not explain why he then still felt it was not ‘right’ to leave the schooner behind. Arguably, though, this is simply due to the norms of collegiality in the corps of Bremen marine officers: he cannot say anything truly damaging about Siedenburg but feels the latter gave the wrong orders. It should have occurred to both Siedenburg and Warkmeister that the exhausted American sailors stopped pumping when they thought they would be taken off their ship, but neither of them makes this obvious point since it would undermine Siedenburg's stance.

Warkmeister could be questioned at the time since he had returned to Europe independently of the Agnes. Siedenburg himself was back in Bremen only in August 1869. The officials were tenacious enough to still interrogate him, but they then laid the inquest to rest. The Wasserschout of the city of Bremen, Johann Heinrich Daniel von Hunteln, the official charged with marine affairs, eventually declared, in his written opinion on the case, that it would have been possible to take the American crew aboard and that ‘Captain Siedenburg, in respect of humanity, could have acted differently’. There had not been any reason to suspect piracy, even if ‘the wreckers and salvagers of the Bahamas are known to be very obtrusive’ – but not on the open seas. The Wasserschout finally points out the obvious: that the lack of pumping work should have been understood as related to the hope of being rescued. Moreover, Siedenburg's speculations on insurance fraud were to be rejected as groundless, and ‘Siedenburg should not have tried to smother the feeling of humanity by these assumptions’. ²⁷ In other words, the matter remained within the remit of moral reproach. There was no official ruling on the case by the bailiff or other authorities, and Siedenburg did not face any further consequences for his neglect of aid. He retained command of the Agnes until the ship was sold to a different shipwright in 1874. ²⁸ In the end, there was no law that would have been pertinent for the case.

The tenderness of the Wasserschout's reproach, to the effect that ‘Siedenburg should not have tried to smother [his] feeling of humanity’, is arguably characteristic of the moral language of the time in cases where there was no palpable penal sanction to match moral judgment. The tenderness concedes the practical weakness of moral sanctions, but at the same time it is a form of litotes that points to the absence of a remedy for the state of abjection into which Siedenburg has cast himself. It is also precise. Von Hunteln recognizes that Siedenburg was unsuccessful in his attempt, as he retained a guilty conscience. The captain, too, seems to have felt this keenly, as the animated nature of his excuses and pretexts indicates. He certainly was not one to coolly shrug off the reproaches and the confrontations until they faded away, even though it was clear already to Consul Schumacher, when he triggered the investigation, that there would at most be symbolic consequences. The matter must be ‘investigated’, he writes. ²⁹ He does not demand that some kind of conclusion, judgment, punishment or resolution be reached. Tending to moral language is an indispensable part of the practice of morality. The right things need to be said or written down. This has the added effect of projecting morality into a historical future of unforeseeable duration, as the files are written for the archive. The judgment neither changes nor disappears. The assiduousness with which the participants in Siedenburg's investigation penned their ineffectual missives is a sign of the importance then vested in this idiom of morality and its sustenance over time. This importance may easily appear quaint from a later perspective, but it is related to the absence of legal regulation. The significance of moral language increases when it is not overwritten by the law. And this effect is deployed to demarcate the different territories of legal and moral normative orders, respectively. Historical knowledge about the case is an effect of this work of demarcation.

Legal rupture and the diversity of legal traditions

It was only in the twentieth century that international maritime law formulated explicit and universally valid rules and obligations of lifesaving, first in what is usually abridged to the Brussels Convention on Assistance and Salvage at Sea from 1910, an agreement initiated by the Comité Maritime International, a pressure group that was founded in Antwerp in 1897 to harmonize and improve international maritime law. ³⁰ It is true that the prehistory of this agreement reaches back into the nineteenth century, and indeed much further. ³¹ There is no continuous line of legal development, however. The missing regulation of maritime lifesaving is marked as a desideratum, for instance, in an 1863 treatise by the French insurance entrepreneur, lawyer and writer Alfred de Courcy, who deplores the absence of rules for compensating lifesavers along with salvagers, and thus treats the matter as essentially a private law problem. ³² De Courcy takes his cue from Articles 458–459 of the British Merchant Shipping Act of 1854, which stipulate that shipowners are to pay a ‘reasonable’ amount of salvage for lifesaving, even before any other salvage is paid out. If there is insufficient property remaining after the accident to pay salvage, the Act decrees that it shall be at the discretion of the Board of Trade to compensate the lifesavers from what was then called the Mercantile Marine Fund – a specific budget created by the same Act from shipping contributions for public expenses of this and other kinds. ³³ The underlying legal principle is that salvage work means acquiring a share of rights in the property salved, and that it is not right to exclude lifesaving from this principle. The prioritization of compensation for lifesaving, however, indicates that there remains a distinction. It is an embarrassment that lifesaving cannot, from the underlying legal point of view, be legislated on in any other manner. The legal resources for formulating a duty of rescue are lacking. It is a further embarrassment that a public body – the Mercantile Marine Fund – needs to be introduced to make sure that lifesavers can be compensated consistently for rescues, even when no salvage is paid. Systematically speaking, salvage remains a matter of private law, so governmental involvement is problematic, except in matters of adjudication. The Mercantile Marine Fund did not survive; it was abolished in 1898. ³⁴

The 1854 Merchant Shipping Act remains vague on lifesaving compensations, and their pertinence for practice is not easily grasped, at least not in the context of humanitarian lifesaving. The lifeboatmen of Caister-on-Sea in Norfolk, for instance, were for over a century recruited from a local salvage cooperative known as the Beach Company. ³⁵ In 1875, these salvers ask the Royal National Lifeboat Institution, whose boats they are to use for rescue but not for salvage – a source of repeated conflict at the time – to regularly demand Board of Trade compensation for lifesaving on their behalf. The Central Committee of the Royal National Lifeboat Institution refuses outright to honour this request. ³⁶ The directors are not willing to adapt their practice, according to which the preservation of life from shipwreck is entirely free of charge, to the legal situation created a full 30 years after the institution’s own statutes. And yet, something significant has shifted, even just by broadly including lifesaving in the definition of salvage.

Article 9 of the Brussels convention of 1910 stipulates that lifesaving does not give any title to monetary compensation from the rescued party, although national legislation may divert from this principle. This may be a concession to standing practice in lifeboat services, where the French organization, in particular, exacted rescue fees. The article further concedes a possible title to a share in salvage fees otherwise incurred when one party has rescued the crew but another the vessel or cargo. This is clearly a nod to British legislation, minus a referral to an equivalent of the Mercantile Marine Fund. The Brussels convention thus accepts the injustice inherent in compensating lifesavers only when salvage is paid. In this sense, it refrains from unifying the novel international rules in the spirit of extant British legislation.

In Article 11, the convention departs yet more decisively from the British model. Here, the signatories agree that those in command of ships have an unconditional duty to rescue the shipwrecked, including enemies in war, whenever possible without harm to their ship, crew or passengers. British legal custom knows no such duty. ³⁷ The article, in effect, creates a legal distinction between lifesaving and salvage within the remit of international law. This legal distinction reproduces the analogous moral distinction in the procedural rules and imperatives of humanitarian organizations for the rescue of the shipwrecked.

If one compares the 1910 article to an earlier draft formulation of the convention worked out by the Conférence Internationale de Droit Maritime, also held in Brussels, in February 1905, the importance the authors attached to the duty of rescue is even more palpable. The respective draft article here comes second, in a place of greater hierarchical prominence, and its formulation is more elaborate. It also includes the decree that ‘Measures to insure the execution of this provision are reserved to the national laws’ – a phrase that the Brussels convention of 1910 outsources to Article 12 and refashions significantly. ³⁸ The underlying rationale is that the duty to rescue requires sanctioning through criminal law, so states will have to adapt another body of legislation quite distant from maritime and private law. This emphasis on sanctioning supports the view that the duty to rescue is the primary intended result of the respective formulations. The context of the international maritime law conferences in those years primarily concerned the question of international standards for liability, although, as Irini Papanicolopulu notes, it also comprises a longer history of emphasizing ‘natural’ duties of assistance to ships in distress, which was a common theme of international legal conferencing from the 1880s at the latest. ³⁹ So, one might be tempted to think that the exemption of shipowners from liability for neglected rescue is the crucial point in Article 11. Yet the question of such a liability only appears to emerge with the introduction of the duty to rescue. It does not come up in practice, as the case of Siedenburg once again indicates. The Vegesack bailiff starts off the entire investigation by interrogating the shipowner, Johann Dietrich Bischoff, but the question as to the latter's liability never arises. In Article 11, as well as in the earlier drafts, the impact of the humanitarian context also shines through very clearly in the sustained insistence that enemies in war are to be rescued as well. The roughly simultaneous efforts of the international legal framing of warfare in the Hague conventions might be mentioned in this regard. Yet almost a century earlier, the insistence that shipwrecked enemies are equally entitled to rescue efforts can be found in Hillary's 1823 Appeal. ⁴⁰ Extending aid to the enemy in war appears to hold a special symbolic significance as a paradigmatic instance of humanitarian moral language.

Yet before the 1905 conference, support for the general obligation for masters to render assistance at sea in the work of the Comité had been not only uneven; there had been so much opposition at an earlier conference in Paris in October 1900 that the participants had actually voted against such a rule. The discussions in Paris were controversial, with members of almost all the delegations split on the desirability of a general duty to rescue. A German delegate was – erroneously even by the standards of German criminal law – convinced that ‘no one thought of imposing such obligations on land’, so why should one for the high seas? ⁴¹ Two French participants underlined that the duty to rescue would be in accordance with ‘natural law’. ⁴² Resistance to such a duty had to do with questions of enforceability and the shipowner's liability for a captain's infractions, and with a general reticence against rendering matters of morality matters of the law. Views on the latter problem are of particular interest, with the Danish member of the Comité, Arthur Leopold Hindenburg, stating that ‘if the state of civilisation had reached such a point that they could convert a moral obligation into a legal one, that was indeed real progress’. ⁴³ One of the Italian delegates, Prospero Ascoli, pointed out that Italy’s national legislation had included a general duty for a captain to assist those in need of help at sea for some time. ⁴⁴ According to Ascoli, this regulation – in force on a national level since 1865 – had not given rise to any of the eventualities that worried the other delegates. Yet the latter ignored this intervention entirely.

It appears that it was the ‘diplomatic’ Brussels conference of February 1905 – so called on account of the official presence of government representatives – and not the consensus of the more expert- and private-interest-dominated Comité, that placed the duty to rescue on the agenda so emphatically that it was accepted without much further discussion in June 1905 at the subsequent Comité conference in Liverpool, although it took another five years to settle the convention. ⁴⁵ In the report that the Comité's Liverpool conference heard on the diplomatic conference earlier in 1905, it was stated quite openly that Britain was now seen as the main obstacle. In order to persuade the British, the chairman of the earlier meeting, the former Belgian prime minister Auguste Beernaert – a prime mover in the creation of the efforts, around 1900, to expand international law and the most important founding figure of the Comité – described the maritime duty to rescue as originating in the British legislation on the obligation of the masters of ships that have collided to extend aid to the other party. ⁴⁶ Only secondarily did he mention what he described as the Italian generalization of the British rule. ⁴⁷ At the 1905 diplomatic conference, the anglophone countries and Germany had remained absent. It was a group of delegates from Catholic nations – namely, Italy, France and Spain – with palpable support from the Belgian organizers, who pushed hardest for the general duty to rescue. This may have been to do with the contemporary standing of natural law arguments in Catholic legal-theoretical discourse following the rise of neo-Thomism. However, the moral weight of nationhood also mattered. The eminent Genoese maritime lawyer Francesco Berlingieri underlined that, for the Italians, it was a point of ‘honour’ to establish the duty to rescue in accordance with the one contained, ‘for seventy years already’, in (unspecified) pre-unification Italian maritime codes. ⁴⁸ Once more, national territoriality found itself aligned, with Berlingieri's intervention, with the humanitarian impetus to remedy distant suffering. It may be worthwhile to track the genealogy of the Italian legislation on the matter more thoroughly than is expedient in the present article.

Even though the Brussels convention models the duty to rescue in accordance with the language of moral norms of lifesaving, since the authors limit this duty to ships’ masters, they subvert the humanitarian imperative of rescue, which purports to address everybody alike, even though privileging those in a state of volunteering for rescue. The legal rupture entails changes in meaning imposed on the imperative at stake. While the moral duty concerns the autonomous decision of moral subjects, the legal duty addresses, in effect if perhaps not intentionally, the actions of the sovereign through their representatives. In fact, this appears to be one of the ways – others being the claim to unconditional obedience and rights of punishment vested in the office – in which sovereign functions accrue around ships’ masters, for, in principle, in the merchant marine, the status of master was nothing more than that of an employee and representative of the shipowner. The well-known semantic progression of ‘captain’ from military rank to the designation for a person in command of almost any type of marine vehicle indicates that a contract of employment alone did not exhaust the intuitions that nineteenth- and twentieth-century societies harboured regarding the legal status of this function.

Implicitly, the legal formulation of the duty to rescue (at sea) suggests that a crucial part of the humanitarian imperative – the duty to attempt rescue even at the risk of one's own life – is removed. Everyone at the Paris conference in 1900 agreed that the law could not mandate such a thing. The significance of this process – of the legal rupture inflicted on established moral language – must not be underestimated. The convention, since it simply gives a positive legal form to what had been treated as natural law in older jurisprudence, even comes close to formulating something akin to a human right to be rescued when at all possible. ⁴⁹ Yet this is precisely not formulated as a right, but rather as a duty of the sovereign, because the authors of the convention shy away from what no doubt would have appeared to them as an excess of ambition to reform other areas of the law. It is ultimately an extra-legal concern with various aspects of morality that provokes the inclusion of the duty to rescue in the Brussels convention.

It would then be problematic to reduce the legal rupture imposed on the humanitarian rupture to a pattern of the mere and complete replacement of moral norms with legal, let alone human, rights. Maritime law never developed an ambition of this kind, even later on. Hindenburg's feelings on the nature of legal progress were far from being shared by all his fellow specialists in the Comité. It is the language of the Brussels convention, in modernized form, that has been taken over into the United Nations’ efforts to codify international maritime law: the Geneva Convention on the High Seas in 1958 (part of the United Nations Convention on the Law of the Sea, UNCLOS I) and then, without further changes, its replacement in UNCLOS III in 1982. ⁵⁰ The 1910 text, although its reach at the time was limited and there were competing efforts such as the International Convention for the Safety of Life at Sea of 1914, has had a profoundly formative impact. ⁵¹

The Brussels convention of 1910, by introducing a duty to rescue on an international level, is a decisive document of the legal rupture imposed on the humanitarian imperative of saving the shipwrecked. The convention discusses lifesaving in terms that integrate a variety of preceding legal norms. Its universalist imperative – the one that competes with the humanitarian norm – appears to be most directly related to natural law discourse. By contrast, the British attempt at regulating lifesaving by subordinating it under the problem of salvage is recognized but sidelined, since its attempt at universalization – by adding an instrument of quasi-public compensation that was to ensure lifesavers would be recompensed – is tacitly rejected. Insofar as the novel duty to rescue translates into a right to be rescued from shipwreck (by any sovereign whose representatives happen to be able to do so), this right has the status of an informal human right formulated in the seemingly outlying province of maritime law. The legal rupture is also a process by which the dominant political understanding of freedom through rights – in J. G. A. Pocock's sense of modern liberty rather than ancient ⁵² – and a practice of legislation governed by this paradigm seek to incorporate the modernizing trajectory of moral thought. The way in which, in this case, moral norms of agential autonomy are subtly overwritten by norms applying to the representatives of the sovereign is, I believe, evidence of this process.

Normative mess, sovereign mess

Even outside the maritime context, the legal framing of lifesaving has constantly been motivated by the problem of the diverse liabilities of the rescuing and the rescued parties. Historically, rescue has fundamentally been treated as a matter of private law, and the respective rules have often been authored in a collaborative fashion by pressure groups, technical experts and economic stakeholders rather than by governmental agents. In this regard, the legal rupture resembles the humanitarian one, which was also driven by the collective agency of specific social groups rather than a sovereign effort. Perhaps it is also because of the plurality of the traditions weighing in on the matter that the legal framing of the duty to rescue has been subject to a considerable variety of legal interpretations over the centuries. The Roman law tradition supplied the model of negotiorum gestio, the unsolicited taking care of someone else's business, as a general definition of the legal relationship between concerned parties in cases of emergency aid. French and Austrian national legislation on lifesaving was relying on elements from this framework in the early nineteenth century, as were the new German legal codes from the 1870s onwards. This, however, went along with a condition of territorial pertinence that potentially continued to abandon the high seas to natural law. ⁵³

In some juridical contexts, such as those of Prussia, France, Austria and Bavaria, there was another tradition of legislation on lifesaving that did not rely on negotiorum gestio. In terms of doctrine, these regulations tended to define the liabilities of lifesaving in terms of the common good, as a matter of the intersection of public and private law. Those who saved others incurred risks in the service of all. For this reason, lifesavers had a right to public compensation, or so these lawyers thought. Legislation that entitled lifesavers to monetary compensation by the state did not exactly ensue from this line of reasoning but was, in some jurisdictions, doctrinally justified by it. A politics of care for the integrity of the population, in Foucault's sense of ‘biopower’, is discernible behind this legal-historical shift. ⁵⁴ The preservation of life from emergencies such as drowning or shipwreck supposedly contributed to the sustenance and growth of the population as a whole.

Yet one decisive model and precedent for this type of regulation was not in mercantilist-cameralist economics, as one might think following the biopower line of argument, which seems to remain bound up with economic utility as seen from the point of view of the centralizing power of the state. Rather, as Sören Koch has argued, this approach to lifesaving drew on a very old part of maritime law, the so-called ius iactu or right of a ship's crew to discard cargo in an emergency and right of the cargo's owner to communal compensation from all interested parties through a sharing mechanism known as general average. ⁵⁵ To render things more complicated, mid to late eighteenth-century jurists such as Augustin von Leyser and Christian Friedrich Glück thought that the ius iactu could assume this regulatory function on account of its natural equity. ⁵⁶ By extension, maritime law as laid down in the compilation known as the Lex Rhodia (which contains the ius iactu) would appear to display a particular proximity to natural law. For this reason, the argument of communal liability had been attractive to those thinkers influenced by the natural law tradition, such as Ludvig Holberg. ⁵⁷

When a legal norm of compensation for lifesaving is constructed through the idea of communal liability in the sharing of danger and risk, and no additional boundaries are imposed on the community of concern, the life has been saved for the betterment of humankind in general. If this is the case, the compensatory duty has to be regarded as pertaining to humankind universally as well. ⁵⁸ So, within this legal tradition, a mechanism for sharing liability could be deployed to achieve a universalism akin to, or even indistinguishable from, that of moral imperatives – another sign of the mimetic relationships and competition between the spheres. The ius iactu meets humanitarianism in this way, as both are prone to embracing the idea that any population, beyond whatever close-range relationships may constitute it as a multitude of subordinate communal bodies, is actually a community of mutual liabilities.

‘Community’, however, remains a pliable term. Its meaning easily moves between the universal community of humanity and more limited sets of communal bonds. In the ambit of both humanitarian morality and the law, these limited sets are commonly taken to coincide with the nation. The nation provides a convenient category of a distance that is overcome, a territory that is being defined and rendered uniform. Both ‘distance’ and ‘territory’ also imply something beyond them, a sphere where humanitarian morality would overreach, a sphere where national legislation is not pertinent. In this matter, too, the relationship between the legal and the humanitarian templates appears mimetic, oscillating between universal and particular applications.

The nation, I would even be tempted to argue, was understood as a moral undertaking by bridging long-distance relations. Territoriality, a prime function of sovereignty, seems to be bound up with the ability of establishing normative order in a defined space. If so, it would appear that sovereignty is always spread out across different agencies that, to varying degrees, display this ability. This means that there is an opening for morality as one of those agencies for imposing normative order on spaces – a moral version of territoriality next to a legislative one. The history of the nation state is probably poorly understood if its moral meanings are left aside. But moral territoriality is also subject to the same vagaries that beset the legal territoriality of sovereignty. Humanitarian morality, in particular, developed not so much in a national as in an imperial context – that of slavery and its abolition as its basic modernizing template in the late eighteenth century – as the model case for subsequent single-issue movements.

It is, then, pertinent to question whether the mimetic relationship between humanitarianism and legislation can also be traced to one of the primary domains of public and international maritime law: the territorialization of maritime space. As Lauren Benton has argued, this process created important and indispensable models of spatial ordering in colonial territories, where highly pragmatic questions of access, sharing and cohabitation led to a patchwork of regulations. ⁵⁹ Arguably, the single-issue morality of humanitarianism followed such models. This is especially the case for the legislation on abolition – the system of international treaties that the British Empire imposed on other empires for this purpose. National territorialization (both moral and legal) portends to be almost the polar opposite of this patched-together legal space that had emerged around European colonial ports. Yet this may be too rash an assumption. The limits of pertinence typical of any humanitarian single issue – the improvised and patchy nature of national moral and legal regulations – continued to apply even when an international order was imposed on maritime lifesaving. The imperial genealogies of the nation-building tendencies both in humanitarian morality and in maritime law contributed to the condition of plurality – even of normative disorder. The neatness of the seeming sequence of humanitarian rupture first and legal rupture second gives way to a more complicated picture of the fracturing that both normative spheres produce.

That said, the mechanics, as it were, of the legal rupture work differently according to what tradition – territorialization, natural law or general average – is given precedence. The general average model of arriving at a universal duty to rescue, for instance, would impose a different kind of legal rupture on the preceding humanitarian morality. It would align with the Roman law tradition of defining an individual life as a negotium, a kind of business and, ultimately, a form of property. It would therefore not appropriate and reinterpret the moral distinction between rescue and salvage, but discard it. The fact that the authors of the Brussels convention considered it necessary to introduce a clear-cut distinction between rescue and salvage is testimony to the inherently diverse tendencies in the European history of law. It also reflects the humanitarian moral constraint that was operating by that time on political and legal thought. European legal traditions, to be sure, have been uneasy with treating life as a form of property, as the long history of legislation on suicide indicates. ⁶⁰ The law, it seems, does not quite so easily side with the primacy of the economic over the moral, even if one of the dominant conceptualizations of lifesaving, negotiorum gestio, presupposes a proprietary understanding of life. In the legislation on marine lifesaving, there is no unified line of thought centred on, say, the state's access to and utilization of ‘life’. Rather, there are two divergent impulses within the law as an expression of political thought, which aim to accommodate the different value structures of life in economic and moral thought, respectively, as both commensurable and incommensurable value.

The resulting legal landscape (or seascape?) was complicated not least because the ambition of territorialization also intervened. When the Geneva Convention on the High Seas formulated the additional stipulation that every coastal state was to ‘promote the establishment and maintenance of an adequate and effective search and rescue service’, it extended the 1910 sovereignization of the duty to rescue into a territorial condition. ⁶¹ The choice of ‘promote’, however, is a pragmatic concession to the fact that there had been a humanitarian territorialization – the result of the moral overcoming of a defined and limited distance between sufferers, helpers and a spectatorly public – in some states next to a political-legal one. The 1958 wording, then, quietly concedes that there is potentially a different source of normativity than the sovereign, and that normativity, as a consequence, is not always a product of legislation. Yet, in a way, this is no more than a variant of the many ways in which territorialization is governed by pragmatic arrangements, such as imperial rough-and-ready improvisations subverting the pretences of national and international legal homogenization and systematicity.

In the current situation, with the global increase in the number of ‘boat people’ and the related problems, and politics, of search and rescue, ⁶² one can see a continuation of the genealogical lineages. Territorialization is present in the way that the Mediterranean, in particular, has been pragmatically divided into zones of rescue. ⁶³ A tactic of pushbacks and ‘push-forwards’ of boat people seems to have been responsible for a number of particularly harrowing disasters, the most prominent in recent years being the June 2023 incident off Pylos (the investigation is ongoing at the time of writing). ⁶⁴ This is a direct effect of the territorialization of the sea and, on an abstract level, of a piece with the thought underpinning the 1958 convention. The contingent historical fact that most Mediterranean countries instituted statal search-and-rescue services from the late nineteenth century onwards seems to play into this situation. In the English Channel, by contrast, the still private humanitarian lifeboat service of the Royal National Lifeboat Institution adheres more rigidly to the humanitarian imperative from the 1820s and has not been reported to be involved in territorial tactics. Yet, for the first time in its history, the core of its mission has become the target of political controversy over the rescue of boat people. ⁶⁵

European migration policies for the rescued address, on a previously unknown scale, the problem of aftercare for the shipwrecked – a matter with which the early humanitarian organizations grappled considerably. ⁶⁶ Following common political patterns in the European Union, it seems that at least so far as the situation is at all tackled by recourse to normative orders, a principle of communal burden-sharing is time and again evoked in European Union politics, with repeated discussions of ‘distribution’ having taken place over recent years. It might be attractive to interpret this model of burden-sharing as reactivating the thought patterns of the general average. This would also mean that migrants are understood as damaging to society, which one may well hold to be deeply problematic but seems accurate for the dominant mode of contemporary political and legal thought.

Nonetheless, international maritime law, with its lifesaving duty partly derived from the natural law tradition, continues to inform the practice of search and rescue, both private and public. Yet, at the same time, the humanitarian template is also reinstated. The legal rupture is not complete. Seeing as the mix of humanitarian and statal institutions in charge of search and rescue seems to fail to resolve the problem, a plethora of novel humanitarian organizations has emerged – for instance, the Boat for Vietnam and Cap Anamur organizations dedicated to the rescue of Vietnamese boat people from the late 1970s onward, and more recently SOS Méditerranée, Sea-Watch and others – which have turned the rescue of boat people into a novel single issue, apart from the long-established single issue of the rescue of the shipwrecked. The risk to the life of the rescuers is not crucial for these novel organizations anymore; yet the readiness to brave political abuses of power and hostile media coverage is. The symbolic force of the humanitarian template manifests very clearly in the distribution of public attention to these practices of rescue: statal agencies are barely ever the focus of media debate, unless it is for failures or refusals to rescue, or indeed the use of force in the policing of maritime borders.

All in all, the situation is a mess of normativity – a normative disorder rather than a normative order. Humanitarian morality, if one thinks of it in terms of social systems rather than normative terms, contributes to, thrives in and reproduces precisely this type of disorder. It is therefore quite clear that humanitarian morality cannot suffice to resolve the situation in question, despite its apparent earlier ability in the period around 1800 to resolve the problem of the shipwrecked being abandoned to their fate. At the same time, the language of humanitarian imperatives of rescue is the only functioning resource of the non-legal normative language – after religious prescripts on this matter have been cast aside by the humanitarian rupture – that European publics bring to the analysis of the situation. Legal discourse, beholden as it is to the diverse, contingent, historically produced reality of normative orders, is a similarly unlikely candidate for actually resolving the state of crisis. If the claim that sovereignty is linked to normative orders is valid, the normative mess also entails a mess of sovereignties. It seems fair to say that a way out is not in sight.