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 contents

CHAPTER 21 EUROPEAN UNION LAW RELATING TO THE

MARITIME ENVIRONMENT: THE HAZARDOUS AND
NOXIOUS SUBSTANCES BY SEA CONVENTION 1143

CHAPTER 22 EUROPEAN UNION LAW RELATING TO

SHIPBUILDING 1146

CHAPTER 23 EUROPEAN UNION LAW RELATING TO SHIP REPAIR 1195

CHAPTER 24 EUROPEAN UNION LAW RELATING TO SHIP

DISMANTLING AND RECYCLING 1198

CHAPTER 25 EUROPEAN UNION EXTERNAL RELATIONS LAW

AND SHIPPING 1227

CHAPTER 26 MARITIME SAFETY: INTRODUCTION AND

EUROPEAN UNION MEASURES RELATING TO
MARITIME SAFETY GENERALLY 1260

CHAPTER 27 MARITIME SAFETY: THE EUROPEAN MARITIME

SAFETY AGENCY 1284

CHAPTER 28 MARITIME SAFETY: PORT STATE CONTROL 1305

CHAPTER 29 MARITIME SAFETY: SHIP INSPECTION AND

SURVEY ORGANISATIONS 1349

CHAPTER 30 MARITIME SAFETY: CASUALTY AND ACCIDENT

INVESTIGATION 1392

CHAPTER 31 MARITIME SAFETY: MINIMUM TRAINING OF

SEAFARERS 1413

CHAPTER 32 MARITIME SAFETY: MINIMUM SAFETY AND

HEALTH REQUIREMENTS FOR IMPROVED
MEDICAL TREATMENT ON BOARD VESSELS 1437

CHAPTER 33 MARITIME SAFETY: INTERNATIONAL SAFETY

MANAGEMENT CODE FOR THE SAFE OPERATION
OF SHIPS AND FOR POLLUTION PREVENTION 1444

CHAPTER 34 MARITIME SAFETY: FERRIES AND RO-­RO VESSELS 1451

CHAPTER 35 MARITIME SAFETY: ORGANISATION OF WORKING

TIME OF SEAFARERS 1490

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CHAPTER 36 MARITIME SAFETY: MARITIME LABOUR

CONVENTION 2006 1497

CHAPTER 37 MARITIME SAFETY: MARINE EQUIPMENT 1505

CHAPTER 38 PIRACY 1537

CHAPTER 39 NAVIGATION 1554

CHAPTER 40 PILOTAGE 1585

CHAPTER 41 SHORT SEA SHIPPING 1592

CHAPTER 42 SECURITY: SHIPS AND PORTS 1606

CHAPTER 43 PORTS: GENERALLY AND THE PORT SERVICES

REGULATION 2017/352 1635

CHAPTER 44 PORTS: REPORTING FORMALITIES FOR SHIPS IN

EUROPEAN UNION PORTS: DIRECTIVE 2010/65 1659

CHAPTER 45 PORTS: ELECTRICITY FOR SHIPS IN PORTS 1670

CHAPTER 46 CARRIAGE OF GOODS AND PASSENGERS 1676

CHAPTER 47 EUROPEAN UNION LAW AND SHIPPING

LITIGATION: THE “BRUSSELS I” REGULATION 1740

CHAPTER 48 BREXIT 1769

CHAPTER 49 CONCLUSIONS 1801

Index 1821

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Volume I
Preface lxxiii
Table of abbreviations lxxv
Table of cases lxxxi
Table of legislation xcv

CHAPTER 1 INTRODUCTION
A. Scope of this book 1.001
B. The European Union
Introduction 1.003
Evolution of the European Union 1.004
The EU is the world’s largest economic bloc 1.008
Population 1.010
The internal market 1.011
Transport in the EU 1.013
Future of the EU 1.015
C. Shipping in the EU 1.016
Introduction 1.016
Strategic significance of shipping for the EU 1.017
Shipping has an important role in the EU’s global and internal trading
activities 1.019
Shipping is an important employer in the EU 1.021
Shipping is an important earner of foreign currency and an
indispensable part of the EU’s ability to trade globally 1.022
Open/non-protectionist policy 1.023
Internal balances 1.024
Multidimensional nature of EU shipping law and policy 1.025
Social dimension to EU shipping policy 1.026
Safety dimension to EU shipping policy 1.027
Environmental dimension to EU shipping policy 1.028
Competition dimension to EU shipping policy 1.029
International dimension to EU shipping policy 1.030
Divergent influences on the development of EU shipping policy? 1.031
Staggered or strategic development of EU shipping policy? 1.036
Should the EU have a role in shipping? 1.037
Introduction 1.037

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Arguments in favour of the EU having a role to play in shipping 1.038

Arguments against the EU having a role to play in shipping 1.040
Is there a comprehensive EU shipping policy? 1.041
Who influences EU shipping law? 1.042
The EU and shipping: a brief comparative perspective in the context of
international organisations and shipping generally 1.043
D. EU shipping law in the wider context of EU maritime policy 1.044
E. Outline of this book 1.046

CHAPTER 2 A COMMERCIAL OVERVIEW OF SHIPPING IN THE

EUROPEAN UNION
A. Introduction 2.001
B. Commercial significance of shipping for the EU 2.004
C. Commercial philosophy of the EU relating to shipping 2.014
D. State of shipping in the EU 2.016
E. Ports in the EU 2.027
F. Passengers 2.028
G. Contribution to the EU from the shipping sector 2.029
H. Analysis of shipping in the Member States
Austria 2.030
Belgium 2.031
Bulgaria 2.034
Croatia 2.036
Cyprus 2.038
Czech Republic 2.040
Denmark 2.042
Estonia 2.045
Finland 2.047
France 2.049
Germany 2.056
Greece 2.063
Hungary 2.073
Ireland 2.074
Italy 2.080
Latvia 2.086
Lithuania 2.089
Luxembourg 2.094
Malta 2.096
The Netherlands 2.098
Poland 2.104
Portugal 2.110
Romania 2.117
Slovakia 2.119
Slovenia 2.120
Spain 2.122
Sweden 2.129

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United Kingdom 2.133

I. Conclusions 2.142

CHAPTER 3 AN OVERVIEW OF THE EUROPEAN UNION AND

EUROPEAN UNION LAW
A. Introduction 3.001
B. The European Union
Introduction 3.003
European Coal and Steel Community (“ECSC”) 3.004
EAEC 3.005
EEC/EC/EU 3.006
C. History
European integration 3.008
Marshall Aid, the Organisation for European Economic Cooperation
(“OEEC”) and the UN Economic Commission for Europe 3.009
Congress of Europe 3.010
Benelux Union 3.011
Council of Europe 3.012
North Atlantic Treaty Organisation (“NATO”) 3.013
Schumann Declaration 3.014
ECSC 3.015
European Defence Treaty 3.016
The EEC and EAEC 3.017
European Free Trade Association (“EFTA”) 3.018
UK’s position at the time of the foundation of the European
communities 3.019
Institutions: Merger Treaty 3.020
Customs Union 3.021
Accessions 3.022
European Monetary System 3.023
Direct elections to the European Parliament 3.024
Internal Market White Paper 3.025
Single European Act (“SEA”) 3.026
Central and Eastern Europe 3.027
Internal market 3.028
EMU 3.029
Failed Constitution but the adoption of the Treaty of Lisbon 3.030
Outlook 3.031
D. Institutional and organic structure of the EU
Introduction 3.032
Commission 3.034
Introduction 3.034
Composition 3.035
Functions 3.036
Operation 3.037
DG MOVE: Directorate-General for Mobility and Transport 3.039

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DG MARE: Directorate-General for Maritime Affairs and Fisheries 3.040

DG COMP: Competition 3.041
Conclusion 3.042
The Council 3.043
Introduction 3.043
Composition 3.044
Functions 3.045
Operation and voting 3.046
The Council’s Committee of Permanent Representatives
(“COREPER”) 3.047
General Secretariat of the Council 3.048
The Council and shipping 3.049
European Council 3.050
European Parliament 3.051
Introduction 3.051
Seat 3.052
Members 3.053
Election 3.055
Operation 3.056
Functions 3.057
The Parliament and shipping 3.058
Future 3.059
The CJEU including the General Court 3.060
Introduction 3.060
Functions 3.061
Personnel 3.062
Operation of the Court 3.068
Procedure 3.073
Jurisdiction 3.076
Other institutions 3.086
Bodies 3.087
Introduction 3.087
Economic and Social Committee 3.088
European Investment Bank 3.089
Civic Society and Lobby Groups 3.090
E. EU law
Introduction 3.091
Sources of EU law 3.092
Primary law 3.092
Secondary law 3.101
Direct effect and direct applicability 3.113
Publication of EU law 3.114
Relationship between EU law and national laws 3.115
Interpretation of EU law 3.116
Selected fundamental principles of EU law 3.117
F. Conclusions 3.122

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CHAPTER 4 AN OVERVIEW OF EUROPEAN UNION TRANSPORT LAW

A. Introduction
Purpose of this chapter 4.001
Importance of transport in the EU 4.002
Need to achieve a common transport policy 4.003
Failure to achieve a CTP 4.004
Legal bases of EU transport law 4.005
Adoption and administration of EU transport law 4.006
Sources of EU transport law 4.007
B. Position of transport in the TFEU
Introduction 4.008
The TFEU and transport generally 4.016
Article 4 of the TFEU 4.018
Text 4.018
Commentary 4.019
Article 58 of the TFEU 4.020
Text 4.020
Commentary 4.021
Article 90 of the TFEU 4.022
Text 4.022
Commentary 4.023
Article 91 of the TFEU 4.028
Text 4.028
Commentary 4.029
Article 92 of the TFEU 4.036
Text 4.036
Commentary 4.037
Article 93 of the TFEU 4.039
Text 4.039
Commentary 4.040
Article 94 of the TFEU 4.043
Text 4.043
Commentary 4.044
Article 95 of the TFEU 4.045
Text 4.045
Commentary 4.046
Article 96 of the TFEU 4.050
Text 4.050
Commentary 4.051
Article 97 of the TFEU 4.053
Text 4.053
Commentary 4.054
Article 98 of the EU Treaty 4.055
Text 4.055
Commentary 4.056
Article 99 of the TFEU 4.057

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Text 4.057
Commentary 4.058
Article 100 of the TFEU 4.060
Text 4.060
Commentary 4.061
C. Secondary legislation 4.071
D. European Economic Area (“EEA”) 4.072
E. Conclusions 4.073

CHAPTER 5 THE HISTORICAL DEVELOPMENT OF EUROPEAN

UNION SHIPPING LAW
A. Introduction 5.001
B. The 1950s: the Foundation Treaties 5.003
C. The 1960s 5.004
Introduction 5.004
1960: Memorandum from the Commission to the Council 5.005
1961: Memorandum on the basic approach to be adopted in the
Common Transport Policy 5.006
1962: Action programme for a Common Transport Policy 5.007
1962: Regulations on competition and shipping 5.008
D. The 1970s
Introduction 5.010
Bodson’s proposals 5.011
The 1973 enlargement of the then EEC 5.012
Commission’s Communication to Council on 25 October 1973 5.013
ECSC 5.014
1973: Oil crisis 5.015
1973: French Seamen’s case 5.016
1974: Ports 5.018
1974: Enforcement of sanctions 5.019
1975: French initiative 5.020
Non-Member States 5.021
Code of Conduct for Liner Conferences 5.022
1976: Interim Report drawn up on behalf of the European Parliament’s
Committee on Economic and Monetary Affairs on the
Community Shipping Industry 5.023
1977: Interim Report drawn up on behalf of the Committee on Regional
Policy, Regional Planning and Transport on the Sea Transport
Problems in the Community 5.024
1977: Consultation procedure: Decision 77/587 5.025
1978: Decision on relations with State trading countries: Decision
78/774 5.026
Tanker disasters: safety responses 5.027
1978: Ship’s inspection proposals 5.028
1978: Decision in respect of liner trades between the Community and
East Africa/Central America 5.029

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1978: Pilotage 5.030

1979: Ratification of the UNCTAD Code of Conduct for Liner
Conferences 5.031
1979: Parliamentary resolution on shipping accidents 5.032
1979: Parliamentary resolution on the Community’s relations with the
COMECON States in maritime shipping 5.033
1979: EESC opinion on Flags of Convenience 5.034
1979: International Convention for Safe Containers 5.035
Shipping crisis 5.036
E. The 1980s
Introduction 5.037
Shipping crisis as well as port distortions 5.038
1980: Recommendation on the Torremolinos International Convention
for the Safety of Fishing Vessels 5.039
1980: Draft for a Council Resolution Concerning Priorities and the
Timetable for Decisions to be taken by the Council in the
Transport Sector during the Period up to the End of 1983 5.040
1980: Extension of the 1978 collection of information decision 5.041
1980: Proposal on port control of pollution 5.042
1980: Parliamentary resolutions on oil pollution 5.043
1981: Accession of Greece 5.044
1981: Council resolution on its priorities in the transport sector up to
1983 5.045
1981: Decision extending the collection of information regime in
respect of the Far East 5.046
1981: Netherlands and the Liner Conference Code 5.047
1981: Tankers entering into German ports 5.048
1981: Proposal on competition rules and shipping 5.049
1981: Proposals on concerted research on shore-based maritime
navigation aid systems 5.050
1982: Extension of the collection of information systems 5.051
1982: Memorandum of Understanding on Port State Control 5.052
1983: EESC opinion on the Commission’s proposal on the application
of Articles 85 and 86 to shipping 5.053
1983: Recommendation on SAR 5.054
1983: Countermeasures decision 5.055
1983: Parliament’s case against the Council for failure to elaborate
proposals in the area of transport 5.056
1984: Commission Memorandum on Maritime Transport 5.057
1985: Progress towards a Common Maritime Policy: Commission
Communication 5.058
Introduction 5.058
Analysis of the market 5.059
Proposals 5.060
EESC’s opinion on the communication 5.068
The 1986 package 5.069

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Regulation 4055/86 5.070

Regulation 4056/86 5.071
Regulation 4057/86 5.072
Regulation 4058/86 5.073
Statements on the package 5.074
Assessment of the 1986 package 5.078
The SEA 5.080
1987: Antwerp meeting 5.081
1987: Joint Committee on Maritime Transport 5.082
1987: Italy/Algeria 5.083
1987: Commission Decision 87/359 on Spanish nationals 5.084
1988: Shipbuilding talks with Japan 5.085
1988: Commission proposal on the minimum health and safety
requirements for improved medical treatment on board vessels 5.086
1988: Competition procedures 5.087
1988: Commission Programme 5.088
1989: Positive measures 5.089
Proposal for a Council Regulation establishing a Community Ship
Register and Providing for the Flying of the Community Flag by
Sea-Going Vessels 5.090
Proposal for a Commission Recommendation on Improving the
Effectiveness of Port State Control in the EU 5.091
Proposal for a Council Regulation providing for a Common Definition
of a Community Shipowner 5.092
Proposal for a Council Regulation applying the Principle of Freedom to
Provide Services to Maritime Transport within Member States
(“Cabotage”) 5.093
1990: Proposal for a Council Regulation regarding the Transfer of
Ships from one Register to another within the EU 5.094
Financial and fiscal measures 5.095
F. The 1990s
Introduction 5.096
June 1990 Resolution on Passenger Ferry Safety 5.097
1990: Proposal for a Council regulation to grant a block exemption for
consortia 5.098
1991: Permanent dialogue on the maritime industry 5.099
1991: Transfer of ships between Member State registers 5.100
1991: Establishment of European Maritime Law Organisation
(“EMLO”) 5.101
1992: Establishment of the Maritime Industries Forum (“MIF”) 5.102
1992: Radionavigation systems 5.103
1992: Council of Ministers enable consortia block exemption to be
adopted 5.104
1992: Medical treatment on board vessels 5.105
1992: Maritime industries communication 5.106
1992: Cabotage regime enacted 5.107

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1993: Spanish derogation to cabotage regime 5.108

1993: Safe seas 5.109
1993: Safety conventions 5.110
1993: Dangerous or polluting goods 5.111
1993: Shipbuilding directive extended 5.112
European Economic Area (“EEA”) agreement with the EC 5.113
1994: Commission v French Republic 5.114
Protocol 19 on maritime transport 5.115
1994: Ships inspection/classification societies 5.117
1994: Seafarers’ training 5.118
1994: Global Navigation System 5.119
1995: Commission regulation on application of Article 85(3) (now
Article 101(3) TFEU) to consortia 5.120
1995: Port State control 5.121
1995: Short sea shipping communication 5.122
Council Regulation 3051/95 on the safety management of roll-on/
roll-off passenger ferries (ro-ro ferries) 5.123
1995: Statistical return on passengers and goods 5.124
1996: Short sea shipping resolution 5.125
1996: Commission communication: “Towards a New Maritime
Strategy” 5.126
1996: CEWAL before the General Court 5.127
1997: Commission communication: “External Relations in the Field of
Maritime Transport” 5.128
1997: Council Resolution on a New Strategy to Increase the
Competitiveness of Community Shipping 5.129
1997: Community guidelines on State aid 5.130
1998: Trans-Atlantic Conference Agreement 5.131
1990s Generally 5.132
G. The 2000s
Introduction 5.133
2000: Consortia block exemption: Regulation 823/2000 5.134
2000: Promotion of intermodality and intermodal freight transport in
the EU 5.135
2000: Promotion of short sea shipping 5.136
2000: Commission fines shipping lines for pricing agreement on the
Europe/Far East trade 5.137
2001: Ports package 5.139
2002–2003: Repeal of Regulation 17/62 and adoption of Regulation
1/2003 5.140
2002: TAA and FEFC 5.141
2002: Full liberalisation of cabotage 5.142
Establishment of the European Maritime Safety Agency (“EMSA”) 5.143
2004: State aid guidelines 5.144
2005: Mid-term review of the White Paper on European transport
policy 5.145

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Consortia block exemption extended until 2010 5.146

Green Paper on a future EU maritime policy 5.147
2006: Rejection of the port services liberalisation measures 5.149
2006: Repeal of Regulation 4056/86 and the adoption of Regulation
1419/2006 5.150
2007: An Integrated Maritime Policy for the EU 5.151
2008: Ending of the block exemption for liner conferences and the
extension of the general competition regime to cabotage and
tramp shipping on 18 October 2008 5.153
2008: Shipping guidelines 5.154
2008: Commission opens consultations on review of block exemption
for liner shipping consortia 5.155
2009: EU Maritime Transport Policy for 2018 and Commission
Strategy Plan to Establish a European Maritime Transport Space
without Barriers 5.156
2009: Third maritime safety package 5.157
2000s: Tonnage taxes 5.158
2009: State aid and ship management companies 5.159
2009: Recognition of the Polish Register 5.160
2009: Entry into force of the Treaty of Lisbon 5.161
2000s: Conclusions 5.162
H. The 2010s
2010: Integrated Maritime Policy for the EU 5.163
2010: Entry into force of the new consortia block exemption 5.164
2013: Ports package 5.165
2013: Proposal to enhance seafarer’s rights 5.166
2014: The Athens Declaration 5.167
Commission communication setting the strategic goals and
recommendations for the EU’s maritime transport policy until
2018 5.168
2014: Report on ships’ formalities 5.169
2014: Decision 2014/241 concerning the ratification of, or the accession
to, the Hong Kong International Convention for the Safe and
Environmentally Sound Recycling of Ships, 2009, by the EU
Member States in the interests of the EU 5.170
2014: Regulation on detailed rules for the imposition of fines and
periodic penalty payments and the withdrawal of recognition of
ship inspection and survey organisations 5.171
2014: Consortia block exemption regulation extended 5.172
2015: Regulatory Summit 5.173
2015: Portuguese Shipyard ENVC 5.174
2015: Shipment of waste: Commission guidelines for customs controls
on transboundary shipments of waste 5.175

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2015: Regulation 2015/757 of the European Parliament and of the

Council of 29 April 2015 on the monitoring, reporting and
verification of carbon dioxide emissions from maritime transport,
and amending Directive 2009/16 5.176
2015–2016: Migration crisis 5.177
2016: Brexit vote 5.178
I. Conclusion 5.179

CHAPTER 6 EUROPEAN UNION LAW RELATING TO THE

FREEDOM OF ESTABLISHMENT OF SHIPPING
BUSINESSES AND THE REGISTRATION OF SHIPS
A. Right of establishment
Introduction 6.001
Concept of the right of establishment 6.002
General rule on freedom of establishment 6.003
Prohibition of new restrictions 6.006
Implementation of the Treaty provisions on establishment 6.007
Freedom of establishment and registration of ships 6.009
Mutual recognition of diplomas, certificates and qualifications 6.010
Exceptions to the freedom of establishment 6.012
Introduction 6.012
Exception 1: Exercise of official authority 6.013
Exception 2: Public policy 6.015
Exception 3: Public security 6.016
Exception 4: Public health 6.017
Definition of a Community or EU Shipowner 6.018
B. Registration of ships in international law
Introduction 6.019
Traditional home registries 6.021
Traditional open registries 6.022
Offshore registries 6.024
International registries 6.025
International law on registration 6.026
Geneva Convention on the High Seas 1958 6.027
United Nations Convention on the Law of the Sea 1982 6.031
United Nations Convention on the Registration of Ships 1986 6.033
C. EU perspective on registration of ships
Introduction 6.035
EU reaction to the UN Convention on the Registration of Ships 1986 6.036
Commission’s communication 6.036
Commission’s proposal 6.043
European Parliament’s report 6.044
D. Transfer of ships between EU Member State registries: Regulation
613/91 (now repealed)
Introduction 6.045
Background to the Proposal 6.049

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Legislative history 6.054

Relationship between the regulation and other rules 6.057
Legal bases of the regulation 6.058
Interpretation 6.059
Application of the regulation 6.063
Obligation on Member State to register 6.066
No additional requirements for certificates 6.070
Divergences of interpretation 6.071
Committee of maritime experts 6.074
E. Transfer of ships between EU Member State registries: Regulation
789/2004 (current regime)
Introduction 6.078
Purpose of Regulation 789/2004 6.081
Concepts in Regulation 789/2004 6.082
Scope 6.083
Transfer of register 6.084
Certificates 6.085
Refusal of transfer and interpretation 6.086
Committee procedure 6.087
Reporting 6.088
F. Parallel registries
Introduction 6.090
The Sloman Neptun litigation 6.094
G. Case law of establishment and registration generally
The Commission v Greece case 6.096
The Factortame litigation 6.099
Introduction 6.099
The Factortame I case 6.105
The Factortame II case 6.109
The Factortame III case 6.117
H. The Viking litigation
Introduction 6.118
Factual background 6.120
UK litigation 6.127
Free movement of persons 6.132
Second question: Horizontal Direct Effect and Article 49 6.134
Essence of the CJEU’s ruling in Viking 6.139
Analysis of the ruling 6.140
I. The Commission v Netherlands litigation
Introduction 6.141
Legal background 6.143
J. An abandoned proposal for an EU register: EUROS
Proposal 6.152
Objective of the proposal 6.154
Legal bases 6.156
Market reaction 6.157

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Establishment of the register 6.158

Eligibility to be registered 6.159
Safety on EUROS-registered ships 6.167
Advantages of being registered on EUROS 6.180
Assessment of the proposal 6.181

CHAPTER 7 EUROPEAN UNION LAW RELATING TO FREEDOM TO

SUPPLY SERVICES: INTERNATIONAL SERVICES;
CABOTAGE SERVICES; AND SHIPPING SERVICES GENERALLY
A. Introduction 7.001
B. Freedom to provide services in EU law 7.006
C. International shipping services: Regulation 4055/86
Introduction 7.007
Purpose of the Regulation 4055/86 7.008
Commercial background to Regulation 4055/86 7.015
Effect of Regulation 4055/86 7.016
Entry into force of Regulation 4055/86 7.020
Implementation of Regulation 4055/86 7.021
Basic provision relating to freedom to provide services: Article 1 of
Regulation 4055/86 7.022
Unilateral national restrictions and the timetable: Article 2 of
Regulation 4055/86 7.029
Cargo-sharing arrangements in bilateral agreements: Articles 3 and 4 of
Regulation 4055/86 7.030
Cargo-sharing arrangements in future agreements: Article 5 of
Regulation 4055/86 7.033
Non-discrimination between EU nationals on the basis of nationality 7.035
Non-EU nationals and Regulation 4055/86 7.036
Temporary establishment 7.037
Review 7.038
Assessment of Regulation 4055/86 generally 7.039
D. Cabotage or domestic shipping services: Regulation 3577/92
Introduction 7.040
Concepts of cabotage 7.044
Commercial overview of cabotage 7.047
Merits of cabotage 7.048
Arguments for cabotage 7.048
Arguments against cabotage 7.049
An historical perspective on cabotage in the Member States 7.050
Introduction 7.050
States which had cabotage restrictions in more recent times 7.051
Introduction 7.051
France 7.052
Germany 7.053
Greece 7.054
Italy 7.055

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Portugal 7.056
Spain 7.057
Sweden 7.058
States which did not have cabotage restrictions in more recent times 7.059
Belgium 7.059
Ireland 7.060
United Kingdom 7.061
States which had limited cabotage restrictions 7.062
Denmark 7.062
States which had no cabotage restrictions or issues 7.063
Development of the EU law on cabotage 7.064
1974: Commission v France 7.064
1984: European Parliamentary Question 7.065
1985: Communication from the Commission to the Council 7.066
1986: December package 7.067
1988: Commission Programme 7.068
1989: Positive Measures Programme 7.069
Council Regulation (EEC) 3577/92 of 7 December 1992 applying the
principle of freedom to maritime transport within Member States
(maritime cabotage) 7.071
Introduction 7.071
Key concepts in Regulation 3577/92 7.072
The benefits of cabotage 7.078
Legal bases of Regulation 3577/92 7.079
Beneficiaries of Regulation 3577/92 7.080
EU Member States generally 7.080
Vessels registered on the EUROS Register 7.081
Implementation of Regulation 3577/92 7.082
Introduction 7.082
General principle 7.083
Mediterranean 7.085
Suspensory effect of Regulation 3577/92 7.086
Operation of Regulation 3577/92 7.088
Public service obligations and Regulation 3577/92 7.090
Introduction 7.090
Crewing or manning of vessels engaged in cabotage 7.094
Mainland cabotage 7.094
Island cabotage 7.095
Cruise liners 7.098
Serious disturbances in the market and Regulation 3577/92 7.099
Introduction 7.099
Definition of “a serious disturbance of the internal transport market” 7.100
Member State’s request to the Commission to adopt safeguard
measures in the event of “a serious disturbance of the internal
transport market” 7.101
Temporary provision of cabotage services 7.105

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Ongoing evaluation of Regulation 3577/92 7.106

Monitoring of Member State/national law 7.108
Conclusion 7.109
Cabotage and competition 7.113
E. Case law relating to Regulation 4055/86 and Regulation 3577/92
Introduction 7.117
1989: Corsica Ferries case 7.118
1994: Peralta 7.127
1997: Haahr Petroleum Ltd v Åbenrå Havn and others: taxation of
cargoes 7.138
1985: Commission v Council (Italo-Algerian Maritime Transport) 7.145
1994: Corsica Ferries Italia Srl v Corporazione dei piloti del Porto di
Genova 7.157
1994: Commission v France: passenger levy case 7.160
1993: Cenargo: UK/Morocco 7.165
1988: Corsica Ferries France v Gruppo Antichi Ormeggiatori del Porto
di Genova Coop. arl, Gruppo Ormeggiatori del Golfo di La
Spezia Coop. arl and Ministero dei Trasporti e della Navigazione 7.166
2001: Analir 7.178
2002: Commission v Italy: disembarkation of passengers 7.189
2002: Geha Naftiliaki EPE and Others v NPDD Limeniko Tameio
DOD/SOU and Elliniko Dimosio: port charges 7.191
2002: Inspecteur van de Belastingdienst Douane, district Rotterdam v
Sea-Land Service Inc. and Nedlloyd Lijnen BV 7.193
2004: Commission v Greece 7.200
Commission v Spain 7.209
2007: Commission v Greece: towage 7.215
2007: Commission v Greece: harbour dues 7.227
2007: International Transport Workers’ Federation and Finnish
Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti 7.230
2006: Agip Petroli SpA v Capitaneria di porto di Siracusa, Capitaneria
di porto di Siracusa – Sezione staccata di Santa Panagia and
Ministero delle Infrastrutture e dei Trasporti 7.239
2010: Commission v Spain 7.246
2010: Enosi Efopliston: Island Services 7.247
2003: Commission v Finland 7.251
2014: Alpina River Cruises GmbH v Ministero delle Infrastructure e
dei trasporti 7.252
2014: Fonnship A/S v Svenska Transportarbetareförbundet and Facket
för Service och Kommunikation (SEKO) and Svenska
Transportarbetareförbundet v Fonnship A/S 7.258
2011: Navtiliaki Etairia Thasou AE and Amalthia I Navtiki Etairia v
Ipourgos Emborikis Navtilías 7.271
2000: Commission v France 7.278
2010: Commission v Malta 7.283
2009: Presidente del Consiglio dei Ministri v Regione Sardegna 7.289

xxiii
 detailed contents

1999: Commission v Belgium 7.297

1999: Commission v Belgium and Luxembourg 7.301
2000: Commission v Portugal 7.302
2000: Commission v Portugal 7.303
1998: Commission v Belgium and Luxembourg 7.304
F. Conclusions 7.308

CHAPTER 8 EUROPEAN UNION LAW RELATING TO

EMPLOYMENT IN THE SHIPPING SECTOR
A. Introduction 8.001
B. The principal provisions relating to employment in the Treaty on the
Functioning of the European Union 8.008
C. International legal background on the employment of seafarers 8.013
D. Sources of EU law on employment in the shipping sector 8.014
E. Directive 2015/1794: the 2015 Directive to extend certain rights to seafarers
Introduction 8.016
Background 8.019
2013: Proposal to extend certain EU employment rights to all seafarers 8.021
Adoption of Directive 2015/1794 8.026
Entry into force of Directive 2015/1794 8.027
Transposition of Directive 2015/1794 8.028
Background to Directive 2015/1794 8.029
Changes brought about by Directive 2015/1794 8.031
Reporting by the Commission on the directive 8.037
F. Directive 1999/63 concerning the agreement on the organisation of
working time of seafarers concluded by the European Community
Shipowners’ Association and the Federation of Transport Workers’
Unions in the European Union
Introduction 8.038
Application of Directive 1999/63 8.047
Definitions in Directive 1999/63 8.048
Working hours 8.049
Age limits 8.050
Resources to ensure compliance 8.051
Fitness to work 8.052
G. Directive 1999/95 of the European Parliament and of the Council of
13 December 1999 concerning the enforcement of provisions in respect
of seafarers’ hours of work on board ships calling at Community ports
Introduction 8.059
Background to Directive 1999/95 8.060
Purpose and scope of Directive 1999/95 8.062
Application of Directive 1999/95 8.063
Definitions of certain concepts in Directive 1999/95 8.064
Preparation of reports 8.065
Inspection and more detailed inspection 8.066
Rectification of deficiencies 8.067

xxiv
Another random document with
no related content on Scribd:
further than that every one is bound by the ten commandments, to
say nothing of his own conscience, to take a part in the afflictions
that befall their door-neighbours.
When the voice of man was whisht, and all was sunk in the sound
sleep of midnight, it chanced that I was busy dreaming that I was
sitting, one of the spectators, looking at another playacting business.
Before coming this length, howsoever, I should by right have
observed, that ere going to bed I had eaten for my supper part of a
black pudding and two sausages, that widow Grassie had sent in a
compliment to my wife, being a genteel woman, and mindful of her
friends—so that I must have had some sort of nightmare, and not
been exactly in my seven senses, else I could not have been even
dreaming of siccan a place. Well, as I was saying, in the play-house I
thought I was; and all at once I heard Maister Wiggie, like one crying
in the wilderness, hallooing with a loud voice through the window,
bidding me flee from the snares, traps, and gin-nets of the Evil One,
and from the terrors of the wrath to come. I was in a terrible funk;
and just as I was trying to rise from the seat, that seemed somehow
glued to my body and would not let me, to reach down my hat,
which, with its glazed cover, was hanging on a pin to one side, my
face all red, and glowing like a fiery furnace, for shame of being a
second time caught in deadly sin, I heard the kirk-bell jow-jowing, as
if it was the last trump summoning sinners to their long and black
account; and Maister Wiggie thrust in his arm in his desperation, in
a whirlwind of passion, claughting hold of my hand like a vice, to
drag me out head foremost. Even in my sleep, howsoever, it appears
that I like free-will, and ken that there are no slaves in our blessed
country; so I tried with all my might to pull against him, and gave his
arm such a drive back, that he seemed to bleach over on his side, and
raised a hullaballoo of a yell, that not only wakened me, but made me
start upright in my bed.
For all the world such a scene! My wife was roaring “Murder,
murder!—Mansie Wauch, will ye no wauken?—Murder, murder!
ye’ve felled me wi’ your nieve,—ye’ve felled me outright,—I’m gone
for evermair,—my hale teeth are doun my throat. Will ye no wauken,
Mansie Wauch?—will ye no wauken?—Murder, murder!—I say
murder, murder, murder, murder!”
 “Who’s murdering us?” cried I, throwing my cowl back on the
pillow, and rubbing my eyes in the hurry of a tremendous fright.
—“Wha’s murdering us?—where’s the robbers?—send for the town
officer!”
“O Mansie!—O Mansie!” said Nanse, in a kind of greeting tone, “I
daursay ye’ve felled me—but no matter, now I’ve gotten ye roused.
Do ye no see the hale street in a bleeze of flames? Bad is the best; we
maun either be burned to death, or out of house and hall, without a
rag to cover our nakedness. Where’s my son?—where’s my dear
bairn, Benjie?”
In a most awful consternation, I jumped at this out to the middle
of the floor, hearing the causeway all in an uproar of voices; and
seeing the flichtering of the flames glancing on the houses in the
opposite side of the street, all the windows of which were filled with
the heads of half-naked folks in round-eared mutches or
Kilmarnocks, their mouths open, and their eyes staring with fright;
while the sound of the fire-engine, rattling through the streets like
thunder, seemed like the dead cart of the plague come to hurry away
the corpses of the deceased for interment in the kirkyard.
Never such a spectacle was witnessed in this world of sin and
sorrow since the creation of Adam. I pulled up the window and
looked out; and, lo and behold! the very next house to our own was
all in a lowe from cellar to garret; the burning joists hissing and
cracking like mad; and the very wind blew along as warm as if it had
been out of the mouth of a baker’s oven!
It was a most awful spectacle! more by token to me, who was likely
to be intimately concerned with it; and beating my brow with my
clenched nieve like a distracted creature, I saw that the labour of my
whole life was likely to go for nought, and me to be a ruined man; all
the earnings of my industry being laid out on my stock-in-trade, and
on the plenishing of our bit house. The darkness of the latter days
came over my spirit like a vision before the prophet Isaiah; and I
could see nothing in the years to come but beggary and starvation;
myself a fallen old man, with an out-at-the-elbows coat, a greasy hat,
and a bald pow, hirpling over a staff, requeeshting an awmous;
Nanse a broken-hearted beggar wife, torn down to tatters, and
weeping like Rachel when she thought on better days; and poor wee
Benjie going from door to door with a meal-pock on his back.
 The thought first dung me stupid, and then drove me to
desperation; and not even minding the dear wife of my bosom, that
had fainted away as dead as a herring, I pulled on my trowsers like
mad, and rushed out into the street, bareheaded and barefoot as the
day that Lucky Bringthereout dragged me into the world.
The crowd saw in the twinkling of an eyeball that I was a desperate
man, fierce as Sir William Wallace, and not to be withstood by gentle
or simple. So most of them made way for me; they that tried to stop
me finding it a bad job, being heeled over from right to left, on the
broad of their backs, like flounders, without respect of age or person;
some old women that were obstrepulous being gey sore hurt, and one
of them has a pain in her hainch even to this day. When I had got
almost to the doorcheek of the burning house, I found one grupping
me by the back like grim death; and in looking over my shoulder,
who was it but Nanse herself, that, rising up from her faint, had
pursued me like a whirlwind. It was a heavy trial, but my duty to
myself in the first place, and to my neighbours in the second, roused
me up to withstand it; so, making a spend like a greyhound, I left the
hindside of my shirt in her grasp, like Joseph’s garment in the nieve
of Potiphar’s wife, and up the stairs head-foremost among the
flames.
Mercy keep us all! what a sight for mortal man to glower at with
his living eyes! The bells were tolling amid the dark, like a summons
from above for the parish of Dalkeith to pack off to another world;
the drums were beat-beating as if the French were coming, thousand
on thousand, to kill, slay, and devour every maid and mother’s son of
us; the fire-engine pump-pump-pumping like daft, showering the
water like rainbows, as if the windows of heaven were opened, and
the days of old Noah come back again; and the rabble throwing the
good furniture over the windows like onion peelings, where it either
felled the folk below, or was dung to a thousand shivers on the
causey. I cried to them for the love of goodness to make search in the
beds, in case there might be any weans there, human life being still
more precious than human means; but not a living soul was seen but
a cat, which, being raised and wild with the din, would on no
consideration allow itself to be catched. Jacob Dribble found that to
his cost; for right or wrong, having a drappie in his head, he swore
like a trooper that he would catch her, and carry her down beneath
his oxter; so forward he weired her into a corner, crouching on his
hunkers. He had much better have let it alone; for it fuffed over his
shoulder like wildfire, and, scarting his back all the way down,
jumped like a lamplighter head-foremost through the flames, where,
in the raging and roaring of the devouring element, its pitiful cries
were soon hushed to silence for ever and ever.
At long and last, a woman’s howl was heard on the street,
lamenting, like Hagar over young Ishmael in the wilderness of
Beersheba, and crying that her old grannie, that was a lameter, and
had been bedridden for four years come the Martinmas following,
was burning to a cinder in the fore-garret. My heart was like to burst
within me when I heard this dismal news, remembering that I myself
had once an old mother, that was now in the mools; so I brushed up
the stair like a hatter, and burst open the door of the fore-garret—for
in the hurry I could not find the sneck, and did not like to stand on
ceremony. I could not see my finger before me, and did not know my
right hand from the left, for the smoke; but I groped round and
round, though the reek mostly cut my breath, and made me cough at
no allowance, till at last I catched hold of something cold and
clammy, which I gave a pull, not knowing what it was, but found out
to be the old wife’s nose. I cried out as loud as I was able for the poor
creature to hoise herself up into my arms; but, receiving no answer, I
discovered in a moment that she was suffocated, the foul air having
gone down her wrong hause; and, though I had aye a terror at
looking at, far less handling, a dead corpse, there was something
brave within me at the moment, my blood being up; so I caught hold
of her by the shoulders, and hurling her with all my might out of her
bed, got her lifted on my back heads and thraws in the manner of a
boll of meal, and away as fast as my legs could carry me.
There was a providence in this haste; for ere I was half-way down
the stair, the floor fell with a thud like thunder; and such a
combustion of soot, stour, and sparks arose, as was never seen or
heard tell of in the memory of man since the day that Samson pulled
over the pillars in the house of Dagon, and smoored all the mocking
Philistines as flat as flounders. For the space of a minute I was as
blind as a beetle, and was like to be choked for want of breath;
however, as the dust began to clear up, I saw an open window, and
hallooed down to the crowd for the sake of mercy to bring a ladder,
to save the lives of two perishing fellow-creatures, for now my own
was also in imminent jeopardy. They were long of coming, and I did
not know what to do; so thinking that the old wife, as she had not
spoken, was maybe dead already, I was once determined just to let
her drop down upon the street, but I knew that the so doing would
have cracked every bone in her body, and the glory of my bravery
would thus have been worse than lost. I persevered, therefore,
though I was ready to fall down under the dead weight, she not being
able to help herself, and having a deal of beef in her skin for an old
woman of eighty; but I got a lean, by squeezing her a wee between
me and the wall.
I thought they would never have come, for my shoeless feet were
all bruised and bleeding from the crunched lime and the splinters of
broken stones; but, at long and last, a ladder was hoisted up, and
having fastened a kinch of ropes beneath her oxters, I let her slide
down over the upper step, by way of a pillyshee, having the
satisfaction of seeing her safely landed in the arms of seven old
wives, that were waiting with a cosey warm blanket below. Having
accomplished this grand manœuvre, wherein I succeeded in saving
the precious life of a woman of eighty, that had been four long years
bedridden, I tripped down the steps myself like a nine-year-old, and
had the pleasure, when the roof fell in, to know that I for one had
done my duty; and that, to the best of my knowledge, no living
creature, except the poor cat, had perished within the jaws of the
devouring element.
But bide a wee; the work was, as yet, only half done. The fire was
still roaring and raging, every puff of wind that blew through the
black firmament driving the red sparks high into the air, where they
died away like the tail of a comet, or the train of a sky-rocket; the
joisting crazing, cracking, and tumbling down; and now and then the
bursting cans playing flee in a hundred flinders from the chimney-
heads. One would have naturally enough thought that our engine
could have drowned out a fire of any kind whatsoever in half a
second, scores of folks driving about with pitcherfuls of water, and
scaling half of it on one another and the causey in their hurry; but,
woe’s me! it did not play puh on the red-het stones that whizzed like
iron in a smiddy trough; so, as soon as it was darkness and smoke in
one place, it was fire and fury in another.
 My anxiety was great. Seeing that I had done my best for my
neighbours, it behoved me now, in my turn, to try and see what I
could do for myself; so, notwithstanding the remonstrances of my
friend James Batter—whom Nanse, knowing I had bare feet, had sent
out to seek me, with a pair of shoon in his hand, and who, in
scratching his head, mostly rugged out every hair of his wig with
sheer vexation—I ran off, and mounted the ladder a second time, and
succeeded, after muckle speeling, in getting upon the top of the wall;
where, having a bucket slung up to me by means of a rope, I swashed
down such showers on the top of the flames, that I soon did more
good, in the space of five minutes, than the engine and the ten men,
that were all in a broth of perspiration with pumping it, did the
whole night over; to say nothing of the multitude of drawers of water,
men, wives, and weans, with their cuddies, leglins, pitchers, pails,
and water-stoups; having the satisfaction, in a short time, to observe
everything getting as black as the crown of my hat, and the gable of
my own house becoming as cool as a cucumber.
Being a man of method, and acquainted with business, I could
have liked to have given a finishing stitch to my work before
descending the ladder; but, losh me! sic a whingeing, girning,
greeting, and roaring got up all of a sudden, as was never seen or
heard of since Bowed Joseph[23] raised the mealmob, and burned
Johnnie Wilkes in effigy, and, looking down, I saw Benjie, the bairn
of my own heart, and the callant Glen, my apprentice on trial, that
had both been as sound as tops till this blessed moment, standing in
their nightgowns and their little red cowls, rubbing their eyes,
cowering with cold and fright, and making an awful uproar, crying
on me to come down and not be killed. The voice of Benjie especially
pierced through and through my heart, like a two-edged sword, and I
could on no manner of account suffer myself to bear it any longer, as
I jaloused the bairn would have gone into convulsion fits if I had not
heeded him; so, making a sign to them to be quiet, I came my ways
down, taking hold of one in ilka hand, which must have been a
fatherly sight to the spectators that saw us. After waiting on the
crown of the causey for half-an-hour, to make sure that the fire was
extinguished, and all tight and right, I saw the crowd scaling, and
thought it best to go in too, carrying the two youngsters along with
me. When I began to move off, however, siccan a cheering of the
multitude got up as would have deafened a cannon; and, though I say
it myself, who should not say it, they seemed struck with a sore
amazement at my heroic behaviour, following me with loud cheers,
even to the threshold of my own door.
23. A noted Edinburgh character.
From this folk should condescend to take a lesson, seeing that,
though the world is a bitter bad world, yet that good deeds are not
only a reward to themselves, but call forth the applause of Jew and
Gentile; for the sweet savour of my conduct, on this memorable
night, remained in my nostrils for goodness knows the length of
time, many praising my brave humanity in public companies and
assemblies of the people, such as strawberry ploys, council meetings,
dinner parties, and so forth; and many in private conversation at
their own ingle-cheek, by way of two-handed crack; in stage-coach
confab, and in causey talk in the forenoon, before going in to take
their meridians. Indeed, between friends, the business proved in the
upshot of no small advantage to me, bringing to me a sowd of strange
faces, by way of customers, both gentle and simple, that I verily
believe had not so muckle as ever heard of my name before, and
giving me many a coat to cut, and cloth to shape, that, but for my
gallant behaviour on the fearsome night aforesaid, would doubtless
have been cut, sewed, and shaped by other hands. Indeed,
considering the great noise the thing made in the world, it is no
wonder that every one was anxious to have a garment of wearing
apparel made by the individual same hands that had succeeded,
under Providence, in saving the precious life of an old woman of
eighty, that had been bedridden, some say, four years come Yule, and
others, come Martinmas.
When we got to the ingle-side, and, barring the door, saw that all
was safe, it was now three in the morning; so we thought it by much
the best way of managing, not to think of sleeping any more, but to
be on the look-out—as we aye used to be when walking sentry in the
volunteers—in case the flames should, by ony mischancy accident or
other, happen to break out again. My wife blamed my hardihood
muckle, and the rashness with which I had ventured at once to places
where even masons and slaters were afraid to put foot on; yet I saw,
in the interim, that she looked on me with a prouder eye—knowing
herself the helpmate of one that had courageously risked his neck,
and every bone in his skin, in the cause of humanity. I saw this as
plain as a pikestaff, as, with one of her kindest looks, she insisted on
my putting on a better happing to screen me from the cold, and on
my taking something comfortable inwardly towards the dispelling of
bad consequences. So, after half a minute’s stand-out, by way of
refusal like, I agreed to a cupful of het-pint, as I thought it would be a
thing Mungo Glen might never have had the good fortune to have
tasted, and as it might operate by way of a cordial on the gallant
Benjie, who kept aye smally and in a dwining way. No sooner said
than done, and off Nanse brushed in a couple of hurries to make the
het-pint.
After the small beer was put into the pan to boil, we found, to our
great mortification, that there was no eggs in the house, and Benjie
was sent out with a candle to the hen-house, to see if any of the hens
had laid since gloaming, and fetch what he could get. In the middle
of the meantime, I was expatiating to Mungo on what taste it would
have, and how he had never seen anything finer than it would be,
when in ran Benjie, all out of breath, and his face as pale as a dish-
clout.
“What’s the matter, Benjie, what’s the matter?” said I to him,
rising up from my chair in a great hurry of a fright. “Has onybody
killed ye? or is the fire broken out again? or has the French landed?
or have ye seen a ghost? or are”—
“Eh, crifty!” cried Benjie, coming till his speech, “they’re a’ aff—
cock and hens and a’; there’s naething left but the rotten nest-egg in
the corner!”
This was an awful dispensation. In the midst of the desolation of
the fire—such is the depravity of human nature—some ne’er-do-
weels had taken advantage of my absence to break open the hen-
house door; and our whole stock of poultry, the cock along with our
seven hens—two of them tappit, and one muffled—were carried away
bodily, stoop and roop.
On this subject, howsoever, I shall say no more, but merely
observe in conclusion, that, as to our het-pint, we were obliged to
make the best of a bad bargain, making up with whisky what it
wanted in eggs; though our banquet could not be called altogether a
merry one, the joys of our escape from the horrors of the fire being
damped, as it were by a wet blanket, on account of the nefarious
pillaging of our hen-house.
 ROSE JAMIESON.

I looked on thy death-cold face, my lassie,—

I looked on thy death-cold face;
Thou seemed a lily new cut i’ the bud,
And fading at its place.

Thy lips were ruddy and calm, my lassie,—

Thy lips were ruddy and calm;
But gane was the holy breath o’ heaven,
To sing the evening psalm.—Allan Cunningham.

Andrew Jamieson was a thorough-paced Cameronian. He held

hats in abomination, as they savoured of Erastianism; abhorred
boots, because the troopers of 1685 wore them while galloping over
the wilds of Dumfriesshire in quest of the persecuted remnant;
testified against the use of “fanners” in the process of separating the
chaff from the wheat, as a tacit renunciation of the doctrine of a
superintending Providence. He judged of the excellences or defects
of a sermon by its length; and on that of prayer by the colloquial
familiarity which the clergyman held with the Deity; pronounced on
his orthodoxy by the complexion of his text; and lifted up his voice
against gowns, bands, and white pocket-handkerchiefs, as frippery
belonging to the scarlet lady. Academical honours were his loathing,
as he knew that, like plenary indulgences, they are, and were, to be
had for money; nor would his prejudice allow him to distinguish
between the man who received a D.D.-ship as the honourable reward
of a life devoted to sacred literature, and him who carried it by
lodging a professor’s wife and daughter during the race week.
Sermons in MS., though they had been the composition of a
Chalmers, and read with the classic elocution of a Thomson,
appeared to him as sounding brass and a tinkling cymbal; or, in his
own vernacular phrase, “in at the tae lug, and out at the tither.”
’Twas the pride of his heart to travel twenty or thirty miles on foot to
hear a favourite preacher; or to attend sacramental occasions in the
air, in unfrequented districts, in imitation of the heroes of the
covenant, who scorned to square their creed to the mandates of a
tyrannical government; and I verily believe that a slight touch of
persecution would have added to his enjoyments in this sublunary
sphere; but this, as he frequently hinted, was too great a privilege to
hope for from a government “neither cold nor hot.”
Andrew was a small farmer in the uplands of Nithsdale, had been
prudent to a proverb in worldly matters, and consequently was rich,
not only in his hopes of futurity, but in the more tangible currency of
this sinful world. Frugality had been one of his most prominent
characteristics; and while many less wealthy neighbours sported
broad cloth at fairs and preachings, according to his inimitable
countryman—
His garb was gude gray hodden,—
His bonnet was a broad one;

which garb, and which bonnet, had been familiar to the frequenters
of “tent preachings” for the greater part of forty years. Such was the
father of Rose Jamieson, the beautiful, the meek, the modest Rose
Jamieson, whose fame extended for many a mile round her father’s
dwelling; and whose fortune perhaps lent her an additional charm in
the eyes of the less worthy of her suitors. Beautiful women have been
so often described by master-spirits, that it would be presumptuous
in me to attempt it. I entreat the reader, therefore, to place before his
mind’s eye Milton’s Eve, or Thomson’s Lavinia, or Campbell’s
Gertrude, or some of the still more glorious creations of Scott or
Shakspeare; ’twill serve my purpose a thousand times better, and
save me a world of trouble. Having thus briefly disposed of her bodily
and mental attractions, it is needless to add that she was sought in
marriage by the flower of the peasantry, and even by many above
that rank in life, but shrunk from their society, as the sensitive plant
shrinks from the human touch, or the sunflower when its idol
withdraws to his ocean bed.
Her pursuits were of an intellectual nature. She loved literature
immensely; and though her parent was sufficiently rigid and
unbending in general, relative to what he designated the “vanities,”
yet he gladly supplied her with the means of gratifying her taste for
books, and even condescended at intervals to direct her in the choice
of their “mute friends;” but his selections generally consisted of those
tremendous folios of divinity, both doctrinal and controversial,
which even yet may be seen on the shelves of our more
unsophisticated peasantry; and her masculine mind was not slow in
making herself mistress of their voluminous contents.
By a careful perusal, however, of the immaculate Volume which
the great Founder of Christianity left as a guide to His followers, she
perceived that her father’s favourite authors did not always resemble
their Divine Master in the milder virtues—such as charity, which
thinketh no evil; brotherly kindness, which is ever and anon ready to
bear with an erring being; and that humility of spirit which is ever
ready to esteem another better than one’s self. As her mind got
emancipated from the thraldom of the austere dogmas which had
been inculcated on it from infancy, she saw a very great deal to
admire, nay, to love, in the doctrines of those very persons whom her
father had branded with the name of “prelatists” and “malignants;”
and hence she began to examine more closely into the merits of the
controversy which raged with so much violence between persons
worshipping the same God, through the mediation of the same
Redeemer.
The result was, that she saw much to praise and much to blame on
both sides, and she endeavoured to cover the failings of either party
with the mantle of Christian love. That many of the Episcopalian
clergy of that unhappy period, when the lieges were forced to attend
the parish church at the point of the bayonet, disgraced their sacred
profession, and brought obloquy on the holy name by which they
were called, can neither be denied nor disputed. That some of them
acted like incarnations of the devil, will not be controverted even in
our own times, when truth, like the meridian sun, has dissipated the
clouds of error and prejudice; but it is equally true, that there were
men among them who adorned their profession by a walk and
conversation becoming the Gospel, and who lamented in secret the
evils which their circumscribed influence could not avert. Who does
not revere the memory of the great and good Leighton, whose
philanthropy extended to all mankind—whose whole existence was a
living commentary on the great doctrine which was ever on his lips—
namely, that the Founder of Christianity came to proclaim “peace on
earth, good-will to men?” After the Revolution, when
Presbyterianism again unfurled her banners to the mountain-breezes
of our country—banners which, alas! had been wofully trampled
under foot, and in defending which the best blood in Scotland had
been poured out like water—the son of one of the ejected curates
settled in the parish of —— as a farmer, retaining, however, the
religious principles in which he had been educated, and which were
now doubly dear to him in the hour of his church’s adversity.
Like his father, he was a Christian, not only in theory, but in
practice; his faith was evinced, not by vague declamation, not by
ultra-sanctimoniousness, but by its genuine fruits—namely, good
works.
Son succeeded sire in the same district and the same principles;
and it seemed that a peculiar blessing had descended on the whole
race; as whatever things were lovely, or of good report, these things
they did; and the promise to the meek was fulfilled them, for they
literally “inherited the earth.”
Their flocks and herds were numerous; their corn and pasture
fields ample;—they enlarged their borders, and, at the time this
sketch commences, they mingled with the aristocracy of the county.
The youngest son of a branch of this family had studied at the
University of Oxford, with a view to the Church of which his family
had been such distinguished members. He was a youth not only of
ardent piety, but of intense application; he fearlessly grappled with
the most abstruse subjects; he divested philosophy of its jargon, and
divinity of its verbosity; and nothing was so dear to his heart as when
he discovered truth like a diamond amidst the heaps of rubbish
which had been accumulating for ages.
But, alas! like the gentle Kirke White, while his mind was
expanding and luxuriating amid the treasures of Greece and Rome,
and the still more sacred stores of Palestine, his body was declining
with corresponding rapidity; therefore, with attenuated frame and
depressed spirits, he sought once more his native vale, to inhale
health with its invigorating breezes.
 Secluded from the great world, and debarred from pursuing his
favourite studies, he sought the society of Rose Jamieson as an
antidote to that ennui which will inevitably obtrude itself on the
mind amid the solitudes of a thinly peopled country. The great poet
of nature has told us that the recluse may find—
Tongues in trees, books in the running brooks,
Sermons in stones, and good in everything.

And I have no doubt that the amiable and interesting student would
have been sufficiently charmed with the beauties of external nature,
and instructed by her eloquence, had there not been “metal more
attractive” in the beautiful being who shared his walks and his
friendship.
The lovely Rose Jamieson became his ministering angel; her smile
chased away the languor that brooded over his intelligent
countenance; her sweet voice quickened his sluggish pulse, and made
his heart thrill with an indescribable joy—a heretofore unknown
rapture; her sunny glances diffused life, light, and gladness through
his whole frame.
The golden hours on angel wing

flew over them; the summer day became too short for them; their
walks became Eden, and their day-dreams Elysium; they loved—
fervently—mutually.
Soon as morning gleamed on the mountains, the fond pair were to
be seen brushing the dew from the clover, by the banks of the
romantic Nith, or climbing the daisied uplands with elastic steps and
buoyant hearts—for the mountain air had already renovated the
youth’s enfeebled frame, and hope had animated his spirits, and
given vivacity to his conversation. They expatiated on the beauty and
sublimity of the scenery around them—on the power and goodness of
the Deity, displayed alike in the creation of the sun in the firmament,
and the production of the myriads of wild-flowers which enamelled
the green sward beneath their feet. The rushing of the mighty river to
a still mightier ocean, and the diamond dewdrop hid in the petal of
the half-opened rose; the wide-spreading and venerable oak of a
century, and the lowly gowan of yesterday, afforded inexhaustible
themes for discussion; and the conclusion which invariably forced
itself on their attention, was that of the pious Addison—
In Reason’s ear they all rejoice,
And utter forth a glorious voice;
For ever singing, as they shine,
“The hand that made us is divine.”

The summer months glided over the youthful pair imperceptibly;

but with returning health, imperative duty impelled the enamoured
scholar to resume his studies; to resign the delicious society of her he
loved for the musty tome, the midnight lamp, and the emulation
approaching hostility, within the time-hallowed walls of Oxford.
Already had his trunks been packed, the day of his departure fixed,
and his adieus uttered—all but one.
They met for this purpose one Sabbath evening in a sequestered
glen; the larch and laburnum formed a rude arbour over them, and a
nameless streamlet murmured at their feet. The stock-doves uttered
mournful cadences, and the plovers over the neighbouring heath sent
forth ominous wailings. The early autumnal breeze moaned through
the thick foliage, and the rustle of the overhanging leaves gave a
dreary response. ’Twas a sad hour; they vowed eternal fidelity—
mingled their tears—exchanged Bibles—and parted—he to the
crowded haunts of science, she to the solitude of her own little
apartment, to brood over the waking dreams of bliss which she had
so lately experienced. On opening the little Bible which she had
received from the hands of her lover, she found the following text
written on the fly-leaf, in a tremulous hand:—“Thou shalt not
forswear thyself, but shalt perform unto the Lord thine oaths,” and
she could trace, moreover, certain globular stains, the cause of which
was not ill to define. “Yes!” she exclaimed, while the tears started
from her large blue eyes, “I will perform all I have vowed to thee, to
the very letter. I will love thee as woman never loved—in sorrow and
in sickness, in poverty and in exile—nay, in death itself I will love
thee; neither shall the influence of wealth, rank, talent, manly
beauty, nor shall the authority, which preponderates more than all
these together, even that of my only parent, ever alienate my
affections from thee, thou chosen of my heart!”
 At this moment the door was opened, and her father stood before
her. A harsh expression pervaded his rigid countenance; there was a
stern inflexibility in his eye, and his lip quivered with emotion; he
held his staff with a convulsive grasp, and his whole frame trembled
with conflicting passions.
“Daughter,” said he, in a tremulous and hollow voice, “daughter, I
had indeed suspected that the corbie was attempting to gain the
dove’s nest—that the descendant of the malignant, with malicious
wile, was endeavouring to secure an interest in thine affections, and
bitterly do I rue that I did not put a stop to it sooner. But little did I
think that thou, the child of my love, the only daughter of thy sainted
mother, whom I have cherished like the apple of mine eye, wouldst
have so far forgotten thy duty as to vow love and obedience to a scion
of an abjured prelatical stock, against whom thy father and thy
father’s fathers have lifted up their testimony, since the glorious
carved work of the sanctuary has been defaced by their unhallowed
hands. Did they not shed the blood of the saints in torrents? Were
they not butchered in the face of the sun, and in cold blood? And did
not their cries enter—but my blood curdles to enumerate the half of
their enormities, and I shall therefore refrain from adverting to
branding, mutilation, fine, imprisonment, exile, and death.
Daughter,” said he, in a sepulchral voice, “thou must break off all
intercourse and connection with this young man instantly; between
us there is an impassable gulf. And if thou perseverest in thine ill-
starred choice; if thou art disobedient to thy hoary-headed father; if
thou cherish his image in thy bosom, or even at some future period,
when I am gathered to my fathers, become his wife, I shall bequeath
thee my malison for thy dowry, and my ban for thine inheritance.”
So saying, he flung himself out of the chamber in a paroxysm of
rage. His beauteous daughter, meanwhile, had become inanimate on
the couch. The usual remedies in these cases were promptly resorted
to; and after a short interval, she opened her eyes, but it was only to
gaze on vacancy. The “silver cord was loosed, and the golden bow
was broken.” Her reason had fled, and never returned. In one month
she was where the wicked cease from troubling, and where the weary
are at rest. Her father, though he deemed he had only done an
imperative duty, could not withstand the shock. Nature sunk beneath
the unlooked-for calamity; he mourned, and he would not be
comforted. In a few weeks he breathed his last; and another tenant
was added to the house appointed for all living.
But who may paint the misery of the unhappy youth when he
learnt the harrowing intelligence? Sorrow is sacred, and we shall not
enter into its detail. Suffice it to say, that he gave up his studies,
returned to his native vale with a broken heart; and in the words of
his celebrated countryman (who no doubt had the pair in his mind’s
eye when he penned the touchingly simple ballad), he is reported to
have said—
Low there thou lies, my lassie,
Low there thou lies;
A bonnier form ne’er went to the yird,
Nor frae it will arise!

There’s nought but dust now mine, lassie,

There’s nought but dust now mine;
My soul’s with thee in the cauld, cauld grave,
And why should I stay behin’?
 A NIGHT AT THE HERRING FISHING.

By Hugh Miller.

In the latter end of August 1819, I went out to the fishing then
prosecuted on Guilliam in a Cromarty boat. The evening was
remarkably pleasant. A low breeze from the west scarcely ruffled the
surface of the frith, which was varied in every direction by unequal
stripes and patches of a dead calmness. The bay of Cromarty,
burnished by the rays of the declining sun until it glowed like a sheet
of molten fire, lay behind, winding in all its beauty beneath purple
hills and jutting headlands; while before stretched the wide extent of
the Moray Frith, speckled with fleets of boats which had lately left
their several ports, and were now all sailing in one direction. The
point to which they were bound was the bank of Guilliam, which,
seen from betwixt the Sutors, seemed to verge on the faint blue line
of the horizon; and the fleets which had already arrived on it had, to
the naked eye, the appearance of a little rough-edged cloud resting
on the water. As we advanced, this cloud of boats grew larger and
darker; and soon after sunset, when the bank was scarcely a mile
distant, it assumed the appearance of a thick leafless wood covering a
low brown island.
The tide, before we left the shore, had risen high on the beach, and
was now beginning to recede. Aware of this, we lowered sail several
hundred yards to the south of the fishing ground; and after
determining the point from whence the course of the current would
drift us direct over the bank, we took down the mast, cleared the
hinder part of the boat, and began to cast out the nets. Before the
Inlaw appeared in the line of the Gaelic Chapel (the landmark by
which the southernmost extremity of Guilliam is ascertained), the
whole drift was thrown overboard and made fast to the swing. Night
came on. The sky assumed a dead and leaden hue. A low dull mist
roughened the outline of the distant hills, and in some places blotted
them out from the landscape. The faint breeze that had hitherto
scarcely been felt now roughened the water, which was of a dark blue
colour, approaching to black. The sounds which predominated were
in unison with the scene. The almost measured dash of the waves
against the sides of the boat and the faint rustle of the breeze were
incessant; while the low dull moan of the surf breaking on the distant
beach, and the short sudden cry of an aquatic fowl of the diving
species, occasionally mingled with the sweet though rather
monotonous notes of a Gaelic song. “It’s ane o’ the Gairloch
fishermen,” said our skipper; “puir folk, they’re aye singin’ an’
thinkin’ o’ the Hielands.”
Our boat, as the tides were not powerful, drifted slowly over the
bank. The buoys stretched out from the bows in an unbroken line.
There was no sign of fish, and the boatmen, after spreading the sail
over the beams, laid themselves down on it. The scene was at the
time so new to me, and, though of a somewhat melancholy cast, so
pleasing, that I stayed up. A singular appearance attracted my notice.
“How,” said I to one of the boatmen, who a moment before had made
me an offer of his greatcoat, “how do you account for that calm
silvery spot on the water, which moves at such a rate in the line of
our drift?” He started up. A moment after he called on the others to
rise, and then replied, “That moving speck of calm water covers a
shoal of herrings. If it advances a hundred yards farther in that
direction, we shall have some employment for you.” This piece of
information made me regard the little patch, which, from the light it
caught, and the blackness of the surrounding water, seemed a bright
opening in a dark sky, with considerable interest. It moved onward
with increased velocity. It came in contact with the line of the drift,
and three of the buoys immediately sunk. A few minutes were
suffered to elapse, and we then commenced hauling. The two
strongest of the crew, as is usual, were stationed at the cork, the two
others at the ground baulk. My assistance, which I readily tendered,
was pronounced unnecessary, so I hung over the gunwale watching
the nets as they approached the side of the boat. The three first, from
the phosphoric light of the water, appeared as if bursting into flames
of a pale green colour. The fourth was still brighter, and glittered
through the waves while it was yet several fathoms away, reminding
me of an intensely bright sheet of the aurora borealis. As it
approached the side, the pale green of the phosphoric matter
appeared as if mingled with large flakes of snow. It contained a body
of fish. “A white horse! a white horse!” exclaimed one of the men at
the cork baulk; “lend us a haul.” I immediately sprung aft, laid hold
on the rope, and commenced hauling. In somewhat less than half an
hour we had all the nets on board, and rather more than twelve
barrels of herrings.
The night had now become so dark, that we could scarcely discern
the boats which lay within gunshot of our own; and we had no means
of ascertaining the position of the bank except by sounding. The lead
was cast, and soon after the nets shot a second time. The skipper’s
bottle was next produced, and a dram of whisky sent round in a tin
measure containing nearly a gill. We then folded down the sail,
which had been rolled up to make way for the herrings, and were
soon fast asleep.
Ten years have elapsed since I laid myself down on this couch, and
I was not then so accustomed to a rough bed as I am now, when I can
look back on my wanderings as a journeyman mason over a
considerable part of both the Lowlands and Highlands of Scotland.
About midnight I awoke quite chill, and all over sore with the hard
beams and sharp rivets of the boat. Well, thought I, this is the tax I
pay for my curiosity. I rose and crept softly over the sail to the bows,
where I stood, and where, in the singular beauty of the scene, which
was of a character as different from that I had lately witnessed as is
possible to conceive, I soon lost all sense of every feeling that was not
pleasure. The breeze had died into a perfect calm. The heavens were
glowing with stars, and the sea, from the smoothness of the surface,
appeared a second sky, as bright and starry as the other, but with this
difference, that all its stars appeared comets. There seemed no line of
division at the horizon, which rendered the allusion more striking.
The distant hills appeared a chain of dark thundery clouds sleeping
in the heavens. Tn short, the scene was one of the strangest I ever
witnessed; and the thoughts and imaginations which it suggested
were of a character as singular. I looked at the boat as it appeared in
the dim light of midnight, a dark irregularly-shaped mass; I gazed on
the sky of stars above, and the sky of comets below, and imagined
myself in the centre of space, far removed from the earth and every
other world—the solitary inhabitant of a planetary fragment. This
allusion, too romantic to be lasting, was dissipated by an incident
which convinced me that I had not yet left the world. A crew of south
shore fishermen, either by accident or design, had shot their nets
right across those of another boat, and, in disentangling them, a
quarrel ensued. Our boat lay more than half a mile from the scene of
contention, but I could hear, without being particularly attentive,
that on the one side there were terrible threats of violence,
immediate and bloody; and on the other, threats of the still more
terrible pains and penalties of the law. In a few minutes, however,
the entangled nets were freed, and the roar of altercation gradually
sunk into a silence as dead as that which had preceded it.
An hour before sunrise, I was somewhat disheartened to find the
view on every side bounded by a dense low bank of fog, which hung
over the water, while the central firmament remained blue and
cloudless. The neighbouring boats appeared through the mist huge
misshapen things, manned by giants. We commenced hauling, and
found in one of the nets a small rock-cod and a half-starved whiting,
which proved the whole of our draught. I was informed by the
fishermen, that even when the shoal is thickest on the Guilliam, so
close does it keep by the bank, that not a solitary herring is to be
caught a gunshot from the edge on either side.
We rowed up to the other boats, few of whom had been more
successful in their last haul than ourselves, and none equally so in
their first. The mist prevented us from ascertaining, by known
landmarks, the position of the bank, which we at length discovered in
a manner that displayed much of the peculiar art of the fisherman.
The depth of the water, and the nature of the bottom, showed us that
it lay to the south. A faint tremulous heave of the sea, which was still
calm, was the only remaining vestige of the gale which had blown
from the west in the early part of the night, and this heave, together
with the current, which at this stage of the flood runs in a
southwestern direction, served as our compass. We next premised
how far our boat had drifted down the frith with the ebb-tide, and
how far she had been carried back again by the flood. We then turned
her bows in the line of the current, and in rather less than half an
hour were, as the lead informed us, on the eastern extremity of
Guilliam, where we shot our nets for the third time.