« AnteriorContinuar »
and the 48th Lecture of the Fifth Part of Chancellor Kent's “ Commentaries ” (4 vols. 8vo. 5th ed. 1844: New York), which contains a summary of the whole of this branch of the Law Maritime, replete with all that lucid terseness and pregnant brevity that give such value to the writings of the learned chancellor.
I can scarcely think it will be displeasing to the English lawyer to have the opportunity of tracing the principles established by Lord Mansfield and Lord Ellenborough, thus applied in regulating, to so important an extent, the mercantile transactions of the great nation across the Atlantic: I must, however, beg him to observe, that I have never in any instance cited an American decision as a binding authority, that I have generally stated it in the text to be an American decision, and invariably distinguished it in the notes by prefixing a cross thus (t).
The Law Maritime of Continental Europe, as far as it relates to Marine Insurance and Average, has always been regarded as entitled to great respect in this country: it is contained partly in the early mediæval sea-laws, partly in the more modern shipping and insurance ordinances of the different European States, and partly in the works of eminent foreign jurists.
The sea-laws of the Middle Ages make very little mention of Marine Insurance, but are of indispensable reference on the subject of Average: in consulting them, I have resorted to the great work of M. Pardessus (of which French lawyers may well be proud, and to which the legal literature of this country can show nothing similar) entitled “ Collection des Lois Maritimes” (7 vols. 4to. Paris, from 1828–1845; still incomplete).
The principal modern Insurance ordinances down to 1754 will be found collected and translated in the Second Volume of Magen’s very useful, and, as it seems to me, much undervalued,
Essay on Insurances” (2 vols. 4to. London, 1755): of the more recent ordinances, the principal is the French Code de Commerce, promulgated the 20th September, 1807.
Among the foreign jurists, the first place is due to the French, of whom Valin, Pothier, and Emerigon wrote under the system established by the Ordinance de la Marine of 1681; Boulay-Paty and Pardessus since the introduction of the Code de Commerce of 1807.
Valin's work, entitled, “ Commentaire sur l'Ordinance de la Marine,” is of deserved celebrity: in referring to it I have cited from the edition of M. Bécane (2 vols. 8vo. Poitiers, 1828), who
gives the parallel passages of the Code de Commerce, and adds a few notes.
Pothier's Essay, " du Contrat d'Assurance” is also well known: the edition I have employed is a very excellent one by M. Estrangin (1 vol. 8vo. Marseilles, 1810), who gives the alterations introduced by the Code de Commerce, and enriches the work with several notes and appendices, in which he discusses, with great acuteness, some of the more intricate questions connected with the subject.
But of all writers on this branch of the law, incomparably the first is Emerigon, whose “ Tro les Assurances” is a masterwork, rich with all the learning of the sixteenth century, and arranged with all the analytical precision of the eighteenth, exhausting every source of erudition with German laboriousness, and unfolding all the intricacies of detail and argument with that lucid precision in which the higher order of French scientific writers are so unrivalled.
The edition of Emerigon referred to throughout this work is that of Boulay-Paty (2 vols. 4to. Rennes, and Paris, 1827).
With a view of leading the reader to turn for himself to this great store-house of mercantile law, and also to avoid encumbering my own foot-notes with a parade of learning, I have generally preferred citing Emerigon alone, without any additional references to the foreign doctors and jurists — Roccus, Casaregis, Santerna, Straccha, Targa, Loccenius, and others too numerous to mention, - whose works are profusely quoted in his pages.
Among the recent French commentators on the Code de Commerce, the most distinguished are Boulay-Paty and Pardessus : Boulay-Paty's work, entitled, “ Cours de Droit Commercial Ma. ritime,” (4 vols. 8vo. Paris, 1834,) may, on the whole, be recommended as the best guide to the present state of the law in France on the subjects of Marine Insurance and Average: the work of Pardessus, “ Cours de Droit Commercial,” (6 vols. 8vo. 5th ed. Paris, 1841,) takes a wider range, embracing the whole body of mercantile law, and therefore treats less copiously, though very clearly and comprehensively, of the immediate subject of the present work.
In addition to the French jurists, my chief guide to the continental law has been Mr. Benecké, whose profound and laborious work, entitled a “System of Insurance and Bottomry,” (System des Assecuranz-und-Bodmereiwesens) was published at Hamburgh in 4 vols., in different years from 1805 to 1810, with a fifth or supplemental volume in 1821:— in 1824, that part of the work which treats of indemnity, valuation, average, total loss, and abandonment, was published at London, in one volume, under the author's superintendence, with the title of “ Principles of Indemnity in Marine Insurance,”—a title suggestive of only a small portion of its valuable contents. To this writer I feel greatly indebted for the admirable view he presents of the general body of the Continental law, for his acute investigations into the general principles of the science, and for several comments on the course of our own jurisprudence, almost every decision in which, down to the publication of his last volume, he cites at some length.
That part of Mr. Benecké's English work which treats of General and Particular Average is especially valuable in a practical point of view, and to it, and the very able " Essay on Average"
" by Mr. Stevens (1 vol. 5th ed. London, 1835), abundant recourse has been had in the following pages. Mr. Phillips, the American writer on Insurance, has published both these works together, in a very convenient form, and with some excellent notes; but I have preferred citing from the London editions of the separate works, as being more accessible in this country.
On looking back over the somewhat extensive field which has been traversed in collecting materials for this work, it is impossible to forbear asking why England should still continue the only mercantile state of civilised Europe without a code of shipping and insurance law. In the whole range of the Law Mercantile there seems no subject more adapted for codification; scarcely any in which it is more wanted ; done where the requisite means of information and the results of experience exist in greater abundance.
Should this book, by presenting a general, although very imperfect, view of the present state of the Law of Marine Insurance as it exists in this and other countries, at all tend to facilitate the accomplishment of so important a work, it will not have been written in vain. The actual state of this branch of our law in many of its departments, seems undoubtedly to require amendment; to go no further than the doctrine of Constructive Total Loss and Abandonment, — the difficulty of discovering what the law is, on this head, is surely far greater than it ought to be in any system of jurisprudence which claims credit on the score of certainty and precision, greater unquestionably than it would be if the different
grounds of abandonment were clearly defined and stated, as they are in the French system. What we want, however, is not so much any lengthened inquiry, parliamentary or otherwise, as to what the law, in this branch of it, ought to be ; — the points, indeed, open for inquiry of this kind seem comparatively few;— the thing required is a definite, clear, and concise statement of what the law actually is; the task to be performed is that of converting the already abundant materials of legislation into positive law; a task that can only be rightly executed by those to whom of right it belongs, the consummately accomplished masters of law and legal language. Are there none of the living luminaries of our law to whom the State might consent to entrust such an undertaking, and who, on their parts, might not be unwilling to dignify the retirement of a learned leisure, by consecrating it to a work of such high public utility, as the codification of the law maritime for the greatest of all maritime states ?
12. King's Bench Walk, Temple.