Leonidas Villagran
lv@villagranlara.com
The historical origin in the legal system of Hispanic America comes from Roman law, with wide influence throughout Europe as Spain and France, known as countries with a civil system, based on the written law.
In contrast, despite the Roman invasion and its influence, the legal system of common law prevailed in England, based on the characteristic that the law is built on a foundation of jurisprudential precedents but also written rules known as Statutes.
The Roman Justinian Digest included regulations related to maritime law based in the so-called Lex Rhodia de Iactu, influenced by the mediterranean compilation of customary maritime regulations called the Rhodian law.
Thus, the Roman law influenced the world including the region now known as Spain. Consequently, the Spanish Empire imposed its law to the new American colonies in the XIV century after the discovery and conquest of several parts of the Americas.
On the other hand, in the 17th century King Louis XV issued the French Marine Ordinance of 1681, which was considered the most important maritime code of this century. (Healy and Sweeney 1998), being the first attempt to compile norms related to maritime law in Europe, incorporating the medieval legal principles from the Roles on, the Visby Ordinances and the Book of the Consulate of the Sea.
In the 18th century, the Spanish colonies used as sources of trading law the so-called Bilbao Ordinances of 1737, a series of regulations instituted by the Bilbao Consulate of the Basque Country, which was constituted by a local community of merchants who applied self regulations.
Indeed, by 1829, a good number of colonies had already become independent from the Empire and as a transition they adopted Spanish laws as far as they were not opposed to their new interests. This was the case with the 1821 Constitution of Cucuta, the first Magna Carta of Great Colombia, which was initially formed by Venezuela and Colombia, including Panama. In 1822, Ecuador adhered to the Great Colombia upon obtaining its independence and consequently the validity of the Bilbao Ordinances was maintained.
The nineteenth century in Hispanic America was marked by independence attempts and exploits.
In contrast, in Europe the so-called golden era of codification promoted by Napoleon in France had already flourished. (Tetley 2002). This is how the Napoleonic codes were developed, beginning with the first French Civil Code of 1804, and continuing with the Commercial Code in 1807. In the case of the Napoleonic Commercial Code, the principles regarding maritime trade were adopted from the famous French Ordinance of the Navy of 1681, contained in the second chapter of said instrument. (Klimaszewska 2012).
The Commercial Code since then has traditionally been a compendium of provisions regarding merchant matters and their relationships. It is important to mention that Spain begins to codify its laws, under the same logic as the Napoleonic Codes.
Consequently and in tune with this trend, the reign of Spain issued its own Commercial Code in 1829, inspired by its traditional commercial law through the Bilbao Ordinances of 1737. (Garteiz-Aurrecoa 2011), but the maritime trade was strongly inspired by the Napoleonic Code of 1807. (Lasso 1998).
The Spanish Code of 1829 included provisions related to maritime law in its third book called Maritime Trade. The nascent Spanish Commercial Code was then a fusion of provisions from Spanish law itself, as well as from the French law.
In 1830, Ecuador abandoned the Great Colombia and on November 4, 1831 the Constitutional Congress of the State of Ecuador decided to repeal the Bilbao Ordinances and adopt the Spanish Code of Commerce of 1829, except for book no. 5, corresponding to the administration of justice, but maintaining the Guayaquil Consulate created during the Spanish rule. Remarkably, the first Spanish Commercial Code of 1829 was a model for the nascent republics, and that was the reason why it was considered a Hispanic code (Abasolo 2009).
Meanwhile, and once independent, Ecuador began to develop its own laws based on the emerging Chilean law. The Supreme Court prepared a Commercial Code bill approved by the National Convention of 1878 and finally President Ignacio de Veintemilla approved the first Commercial Code of Ecuador. (Alterini 2008).
This Code was replaced by a new one issued in 1906 by President Eloy Alfaro. Later, in 1960, Ecuador approved a new codification, the third Commercial Code that was valid until 2019. In all these codes, the third book referred to Maritime Commerce, without major changes.
In contrast, the Commercial Code that entered into effect in 2019 makes fundamental changes in relation to maritime law, under a simple and useful exercise to update the regulations, harmonizing them with the universal doctrines in force. For example, incorporating into our legislation the content of the international doctrine on collision contained in the Brussels Collision Convention 1910. Ecuador is not a party to this Convention, but it has introduced its rules into its domestic legislation.
It is important to mention that by ratification of 1933, Ecuador is part of the Sanchez de Bustamante Code for Private International Law of 1982. This instrument contains regulations related to maritime law in its third title. However, this instrument was ratified by Ecuador with a reserve, which is that it is accepted in all terms that are not in opposition to the Constitution and the law. This reduces this International Code to an instrument dependent on Ecuadorian laws, without hierarchy over them.
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