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On the model of this last have been formed all the modern codes of commercial law (including sea insurance) adopted by the different countries of Continental Europe. These codes have in their turn been elucidated and more closely defined by judges who have decided cases in accordance with their provisions. The convenience and advantage of a code are not that it makes reference to cases unnecessary, but that it definitely states the law on all points discussed in the code in their proper relation one to another. As Judge Duer observes: Nearly every written law on a complex subject requires a commentary— a commentary that study, reflection, and experience can alone supply.”

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Of subsequent local or municipal regulations regarding insurance the most important are the

Hamburg conditions of marine insurance, 1847, revised 1867;

Bremen conditions of marine insurance,

which have been translated into English, the former by the late Dr. E. E. Wendt of London, the latter by Mr. F. Reck of Bremen.

To the list of codes must be added that which was in 1867 described by the late Mr. Justice Willes (in a paper printed in the Report of Unseaworthy Ships Commission, 1874; vol. ii., Appendix, No. lvii.) as "the latest and perhaps best considered one, being the joint production of the lawyers and merchants of North Germany," namely the

North German General Mercantile Code of 1861,

adopted by Prussia in 1862, accepted by the law of 16th April 1871 constituting the German Empire as imperial German law, and now known as the

German General Mercantile Code (Deutsches Allgemeines Handelsgesetzbuch),

of which Dr. Wendt issued a translation in his work on (Maritime Legislation, 3rd ed., 1888-Appendix).

Meanwhile matters in England proceeded in a different direction. At present the English-speaking peoples are

unique in their failure to compile codes or adapt their legal acquirements and results to that form of expression. There is neither ordinance nor code to refer to, and up to the middle of the eighteenth century there is great dearth of that specially English product, reported judicial decision. In the introduction to his book on Marine Insurance, Park says: “I am sure I rather go beyond bounds if I assert that in all our reporters from the reign of Queen Elizabeth to the year 1756, when Lord Mansfield became Chief Justice of the King's Bench, there are sixty cases upon matters of insurance. Even those cases which are reported are such loose notes, mostly of trials at Nisi Prius, containing a short opinion of a single judge, and very often no opinion at all, but merely a general verdict, that little information can be collected upon the subject. From hence it must necessarily follow that as there have been few positive regulations upon insurances, the principles on which they were founded could never have been widely diffused, nor very generally known."

The purpose of the Act of Parliament of 1601 (see p. 1) was the institution of a Court of Policies of Insurance, to consist of an Admiralty Judge, the Recorder of London, two doctors of civil law, two common lawyers and eight merchants, any five of whom were empowered to hear and decide all causes arising in London. But there are no traces of much activity on the part of this court: the restriction of its jurisdiction may partly explain this, but a more serious cause is to be found in the fact that it was decided that an adverse decision in the court did not prevent the reopening of the whole dispute in a court of common law. By 1720 the Court of Policies of Insurance had fallen entirely into disuse; the place of regular law proceedings being largely taken by arbitration in which the practice of continental countries was cited as authoritative or at least deserving attention, and their ordinances and codes were admitted as evidence of custom and practice. This went on till the days of William Murray, Lord Mansfield, who presided in the Court of King's Bench from 1756 to 1788.

Park, in the introduction to his Marine Insurance

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already quoted, gives a most interesting account of the changes in procedure introduced by Lord Mansfield. These changes were so radical that they almost amounted to a reconstitution of the court. Before his time the whole case was left generally to the jury without any minute statement from the bench of the principles of law on which insurances were established. . . . Lord Mansfield in his statement of the case to the jury enlarged upon the rules and principles of law, as applicable to that case; and left it to them to make the application of those principles to the facts in evidence before them." Being hampered by few precedents he had a clear field, and his master mind practically created the commercial law of modern England. His decisions and dicta are the foundations of our insurance law, and through the acceptance of them by eminent American judges they lie at the base of the American decisions. He took full advantage of all he could gather from all the continental ordinances and codes existent in his day, accepting his legal principles largely from these sources. The practices and customs of trade he learnt from mercantile special jurors, out of whom he gradually trained a body of experts in insurance matters. To them he most carefully expounded the law, and in his judgments he cited foreign authorities freely. For instance, in the case of Luke v. Lyde (1759, 2 Burr. 883) which dealt with the question of liability for freight due for goods lost at sea, "he cited the Roman Pandects, the Consolato del Mare, laws of Wisby and Oleron, two English and two foreign mercantile writers, and the French ordinance; and deduced from them the principle which has since been part of the law of England" (Scrutton, Mercantile Law, p. 15).

As respects the present position of the law of insurance in England, it may be said that the contract of insurance falls under the general rule of English Contract Law, namely that the determining element of the intent of the contract is the common intention of the contracting parties. As years have gone on the possibility of diversity of intention and the difficulty of discovering the actual common intention have both been much reduced by the

fact that the decided cases have almost all related to one set insurance formula. In fact the ordinary form of policy prevailing in England since about 1613 is very like the Lloyd's policy form of to-day. Consequently we have nearly three hundred years of decision and tradition bearing on one set of words, with the resultant certainty of the range and effect in English law of the words used in the customary form of the contract of marine insurance. A fixed form of policy offers the almost invaluable advantage of securing to both parties a certainty of signification in the terms employed, with the consequent stability desirable in all transactions into which it is introduced as a factor. On the other hand there may be some reason for doubting whether a form that may have been adequate to the commercial wants of the seventeenth century, can fairly be expected to be flexible enough to adapt itself to the wants of the nineteenth or twentieth. Every day instances occur in which merchants, shipowners, and underwriters are driven to most curious expedients in their endeavours to adapt an ancient, not to say antiquated, document to modern needs.

CHAPTER I

ELEMENTARY NOTIONS

Slip, Covering Note, Policy, Stamp Act

Intent of Contract of Marine Insurance. As the determining element of the intent of a contract is the common intention of the contracting parties, the simplest and surest method of arriving at the true character of the contract of sea insurance is to consider what is the intention common to a merchant or shipowner (or broker acting on his behalf) offering a risk and to an insurer (underwriter) accepting it. It is that the merchant or shipowner (or broker) desires the underwriter to assume in respect of the article which the merchant or shipowner (or broker) desires to insure, the liability for a certain named proportion of such loss or damage as may chance to accrue to it from certain named perils or dangers, and that the underwriter is content to assume this liability in return for a certain agreed sum of money.

Good Faith-Actual Interest.- -It is almost selfevident that the transaction is assumed to be undertaken in good faith, and that consequently the merchant or shipowner actually has something which can sustain loss or damage by the dangers arising in the course of navigation. The transaction described may also be expressed in the following form :

(1) A Contract of Indemnity,

(2) Made in good faith (in uberrima fide),

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