The Custom of the Sea is a set of customs that are said to be practised by the officers and crew of ships and boats in the open sea, as distinguished from maritime law, a distinct and coherent body of law which governs maritime questions and offenses.
Possibly the best-known of the customs is the practice of shipwrecked survivors drawing lots to see who would be killed and eaten so that the others might survive.[1]
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After the sinking of the Essex of Nantucket by a whale on November 20, 1820, the survivors were left floating in three small whaleboats. They eventually resorted, by common consent, to cannibalism to allow some to survive.[2]
The case of R. v. Dudley and Stephens (1884 14 QBD 273 DC) is an English case which developed a crucial ruling on necessity in modern common law. The case dealt with four crewmembers of an English yacht, the Mignonette, who were cast away in a storm some 1,600 miles from the Cape of Good Hope. After a few weeks, one of the crew fell unconscious due to a combination of the famine and drinking seawater. The others (one objecting) decided then to kill him and eat him. They were picked up four days later. The case held that necessity was not a defense to a charge of murder, and the two defendants were convicted, though their death sentence was commuted to six months' imprisonment.