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

This code has recently been revised, and we now possess the new

German Maritime Code,

part of the new German General Maritime Law, passed May 1897 to take effect from 1st January 1900. Translated into English by W. Arnold, 1900.

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 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.

In 1894 Lord Herschell (then Lord Chancellor) introduced into Parliament a codifying bill dealing with Marine Insurance. The bill was submitted to the various commercial bodies whose interests it affects, with the result that a general agreement has in the end been reached on almost every point. The bill has been reintroduced session after session, but so far has not become law. There appears, however, to be a fair prospect that it may be passed by both Houses by the autumn of 1903.

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),

(3) Referring to a defined proportion,

(4) Of a genuine interest in a named object,

(5) Being against contingencies definitely expressed, to which that object is actually exposed,

(6) And in return for a fixed and determined consideration.1

The salient points of the transaction may be briefly put thus: Insurance is a limited aleatory or contingent contract of indemnity.2

Assured and Assurer. The parties to the contract are known as the assured and the assurer, the former of whom is protected by the latter from losses and damage suffered by the property insured in consequence of the perils insured against. The assurer is usually in England named the underwriter, because he subscribes his name to the document of insurance. When a request is made to an underwriter to cover property by insurance, the act is usually expressed by saying that "a risk" has been offered to the underwriter. "Risk" thus comes to mean the liability of an underwriter under his contract. But the word "risk" is also used in a more limited sense to mean a peril or danger insured against, for instance the risk of fire, the risk of jettison, etc. The assured is usually a merchant or a shipowner, and is perhaps best described as a person who has an insurable interest in the property insured. The nature of insurable interest and the various kinds of property, etc., which can be insured will be

1 Cf. Duer i. 58. "It is a contract of indemnity in which the insurer, in consideration of the payment of a certain premium, agrees to make good to the assured all losses, not exceeding a certain amount, that may happen to the subject insured, from the risks enumerated or implied in the policy, during a certain voyage or period of time." Exception might perhaps be taken to the phrase "not exceeding a certain amount." Cf. also the Belgian Insurance law of 1874, "L'assurance est un contrat par lequel l'assureur s'oblige, moyennant une prime, à indemniser l'assuré des pertes ou dommages qu'éprouverait celui-ci par suite de certains événements fortuits ou de force majeure."

The second last European code, the Spanish Commercial Code of 1886, avoids the dangers and difficulties of definition by silence, in this respect conforming more to the habit and style of English commercial law than to that which has prevailed in continental commercial legal practice, especially in Latin countries.

"A policy Vide p. 70.

2 Cf. Mr. Justice Patterson in Irving v. Manning, 1847, of insurance is not a perfect contract of indemnity.'