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Digest reverts to the original draft, and the point is mentioned in the notes.

The law of marine insurance rests almost entirely upon common law. Only a few isolated points are dealt with by statute. The reported cases are very numerous, being over 2000 in number. On some points there is a plethora of authority. On other points of apparently equal importance the decisions are meagre, and not always satisfactory. Some important questions are still untouched by authority, and the rule depends on recognized commercial usage. Again, many of the older cases turn upon commercial conditions which are now obsolete. The subject, therefore, is not an easy one to deal with in a brief Digest. It would be altogether beyond the scope of this Digest to attempt even to refer to the great bulk of decided cases, much more so to endeavour to criticize them in detail. The objects of the Digest are twofold: first, to state the main principles of marine insurance law in brief consecutive propositions; and, secondly, to support those propositions, where possible, by references to leading cases, or cases containing good expositions of principle by eminent commercial judges. Each case is dated, and if a later case reviews previous cases only a reference to the later case is given. Where rules of law seem difficult to apply, illustrations drawn from decided cases are inserted after the section to show the application of the abstract proposition to concrete states of fact.

After the list of cases referred to, there is added a list of important cases, which have been overruled, doubted, or explained. This list has no pretensions to completeness, but may be useful as far as it goes.

Occasional reference is made to foreign codes by way of illustration, but no attempt has been made to

compare the English rules systematically with any foreign code.

The Marine Insurance Bill was first introduced by Lord Herschell in 1894. Its history up to the present time sufficiently appears from the following extract from the Memorandum attached to it, viz. :

"The Bill is founded on the Bill which was introduced in 1894. Its provisions and suggestions received from various sources have been carefully considered by a Committee appointed by the late Lord Chancellor (Lord Herschell). The Committee met at first under the presidency of the late Attorney-General (Sir R. T. Reid, Q.C.), and afterwards under the presidency of Lord Herschell. It consisted of Mr. John Glover and Mr. Milburn, representing the shipowners, Mr. McArthur (Chairman of the Liverpool Chamber of Commerce), and Mr. Hogg, representing the average adjusters, and Mr. J. E. Street, Deputy Chairman of Lloyd's, Mr. Douglas Owen, of the Alliance Marine and General Assurance Company, Mr. William Walton (legal adviser to Lloyd's), representing the underwriters and insurance companies, Mr. C. B. Vallence, Chairman of the Liverpool Underwriters' Association, and the draftsman, Mr. Chalmers.

"The first 33 clauses were examined and passed with some small amendments, by a Select Committee of the House of Lords, which included the Lord Chancellor (the Earl of Halsbury), Lord Herschell, Lord Watson, and Lord Rothschild.

"In dealing with rules of law, which may be modified by the stipulations of the parties, it is to be borne in mind that the certainty of the rule laid down is of more importance than its theoretical perfection. As Willes, J.,

said in 1776, In all commercial transactions the great object is certainty; it will therefore be necessary for the Court to lay down some rule, and it is of more consequence that the rule should be certain, than whether it is established one way or the other.' (Lockyer v. Offley, 1 T. R. at p. 259. See, too, Sailing Ship Blairmore v. Macredie (1898), A. C. at p. 597, per Lord Halsbury.) What mercantile men require is a clear rule to provide for cases where the parties have either formed no intention or have failed to express it clearly. Where the rule of law is certain, the parties know when to stipulate and what to stipulate for."

The future which awaits the Bill is uncertain. Mercantile opinion is in favour of codification, but probably the balance of legal opinion is against it. As long as freedom of contract is preserved, it suits the man of business to have the law stated in black and white. The certainty of the rule laid down is of more importance than its nicety. It is cheaper to legislate than to litigate; moreover, while a moot point is being litigated and appealed, pending business is embarrassed. The lawyer, on the other hand, feels cramped by codification. Discussions on the wording of the Act in question have to take the place of discussions of principles. No code can provide for every case that may arise, or always use language which is absolutely accurate. The cases which come before lawyers are the cases in which the code is defective. In so far as it works well it does not come before them. Every man's view of a question is naturally coloured by his own experience, and a lawyer's view of commerce is perhaps affected by the fact that he sees mainly the pathology of business. He does not often see its healthy physiological action.

If the Bill passes, this Digest may be useful as showing the foundations on which it was built up. If it does not pass, it is hoped that the Digest may be useful as a brief and succinct exposition of the existing law.

I may add that I am mainly responsible for the purely legal part of this Digest, though I have had throughout the benefit of the criticisms of my colleague, Mr. Douglas Owen.

January, 1901.

M. D. C.

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