Encyclopaedia Britannica, 11th Edition, "Inscriptions" to "Ireland, William Henry" / Volume 14, Slice 6

by Various

(a) Constructive total loss results, according to the law of France, Italy, Spain, Belgium, Holland, in case of loss or deterioration of the things insured amounting to not less than three-quarters; in German law a ship is considered to be “unworthy of repair” when the cost of the repair, without deductions new for old, would amount to over three-fourths of the ship’s former value (no similar provision seems to exist in Germany for goods); in the law of America a damage over 50% of the value of the vessel when repaired is a constructive total loss of the vessel, in case of the policy containing no express provision to the contrary. None of these varying systems appears to be so equitable to all concerned as the British rule, which was for this reason suggested to the Buffalo conference for international adoption. As regards the time when the test for constructive total loss should be applied, it was suggested to reject the British rule, prescribing that it shall be the time of commencing action against underwriters, and to adopt the continental and American rule referring to the facts as they existed at the time of abandonment. Then, as respects the effect of a valid abandonment on the rights in the property insured, the conference proposed to adopt the British and American rule of making the abandonment refer back to the time of the loss, as against the continental European system of making the transfer operative only from the date of the notice of abandonment. Finally, as to the freight of a properly-abandoned ship, it was proposed to follow for international purposes the American rule of dividing the freight of the voyage between shipowner and underwriter in the proportion of the distances run before the disaster and to be run thereafter, rejecting the British rule of complete transfer to the underwriter and the various continental rules of proportional division between shipowner and underwriter.

(b) It was proposed to adopt the deductions set forth in the York-Antwerp rules as being suitable for international adoption in marine insurance contracts.

(c) As regards unseaworthiness and its effect on insurances on ships and goods, it was proposed in the case of ships to reduce materially the obligations of the insured as required by English and American law; to diminish the requirement from the absolute attainment of seaworthiness to the mere exercise of all reasonable care to make the vessel seaworthy. Even this attenuation did not appear sufficient, as it was proposed to degrade the performance of the already minimized warranty from being a condition of the insurance, and its non-performance from invalidating the policy. As to goods, they were proposed to be exempted from any warranty of seaworthiness of ship. Concerning negligence, it was proposed to hold the underwriter liable (subject to the new seaworthiness warranty) for any loss caused proximately by a peril insured against, although wholly or partly the result of the neglect of the insured, or his servants or agents, or by the wilful act of his servants or agents, or the inherent nature or unsoundness of the article insured.

(d) In case of double or multiple insurance, the conference proposed to adopt the British rule of making all the policies effectual, independently of the order in which they were effected, and of making all the underwriters entitled to contributions inter se. As regards the premium, it was proposed that no premium should be returnable, where the risk has attached.

With the exception of those embodying the two suggestions named in par. (a), all the resolutions proposed were accepted by the conference. But it appears extremely unlikely that British and American underwriters will voluntarily consent to the practical annihilation of the seaworthiness warranty, and no less improbable that American and continental assured will voluntarily accept the stricter rule of constructive total loss embodied in English law, when their national law enforces on the underwriter terms more favourable to the assured. The fewness of the international insurance markets of the world diminishes the need for uniform international regulations in this matter. The matter may be one for adjustment by variation in the rate of premium, but this is not certain.

The Glasgow conference of 1901 adopted the rules, after excepting time policies from the scope of the rule respecting seaworthiness. The rules are known as the Glasgow Marine Insurance Rules. The writer knows of no instance in which they have been adopted in practice.

Returning to marine insurance in the United Kingdom, it is to be observed that the passing of the Marine Insurance Act of 1906 sharply marks an important change in the nature of the law of the subject. Till then it was based almost entirely on common law, only a few disconnected points having been dealt with by statute. The reported cases were thus of great importance, and being about 2000 in number (teste Sir M. D. Chalmers) were not easy to master. No doubt many of them referred to commercial conditions no longer prevalent; still they could not be entirely ignored. But the original introducer of the bill described it as an endeavour “to reproduce as exactly as possible the existing law relating to marine insurance,” and as by being made law the language of the act has become authoritative, insured and insurers have now no call to go behind the wording of the act in any matter with which it deals. It thus appears that the case law of the subject existing before the 1st of January 1907 may be left aside, unless, perhaps, for use as affording examples of the way in which the provisions of the act work.

A contract of marine insurance is a contract of indemnity whereby the insurer undertakes to indemnify the insured, in the manner and to the extent agreed, against marine losses, i.e. the losses incident to marine adventure. Definition. The contract may by its express terms or by usage be extended to cover risks on inland waters or land risks incidental to any sea voyage. There is a “maritime adventure,” where any ship, goods or other movables are exposed to maritime perils, such property being termed “insurable property”; also where the earning of any freight, hire or other pecuniary profit or benefit, or the security for any loan or expenditure, is endangered by the exposure of insurable property to maritime perils; and where any liability to a third party may be incurred by the person interested in or responsible for insurable property by reason of its exposure to maritime perils. By “maritime perils” are meant the perils consequent on or incidental to the navigation of the sea, i.e. perils of the seas, fire, war perils, pirates, rovers, thieves, captures, seizures and restraints, and detainments of princes and peoples, jettisons, barratry, and any other perils, either of the like kind or which may be designated by the policy.

The contract being one of indemnity against maritime perils, it is evident that no one can derive benefit from it who has not some interest exposed to these perils. Consequently while, subject to the provisions of the act, every lawful marine adventure may be insured, all contracts of marine insurance are void when (1) the assured has no insurable interest, and has entered into the contract without expectation of acquiring such interest; (2) when the policy is a “wager” policy, being made “interest or no interest,” “without further proof of interest than the policy itself,” “without benefit of salvage to the insurer,” or subject to any similar terms. But if there is no possibility of salvage a policy “without benefit of salvage to the insurer” is legally valid. Wager policies are illegal only in the sense of being void to all legal purposes. They cannot be sued upon, hence they are known as “honour” policies. They are of frequent use, generally for the protection of interests which, though real, are not easily defined, or are of pecuniary value hard to determine. But they are ignored by the courts. The essential of insurable interest is the pecuniary advantage seen at the time of insurance as arising to the assured from the safety or due arrival of the adventure, or the pecuniary disadvantage similarly arising from its loss or deterioration. But such interest may lapse before arrival or destruction of the venture, and with the interest lapses the right of the assured to recover from the underwriter. Without interest at the time of the loss there is no right to recover from the underwriter. Should the assured simply transfer his interest to another, e.g. by sale, he can assign his policy to the party who acquires his interest—unless, of course, the policy contains terms expressly prohibiting assignment. The customary form of assignment is endorsement of the policy either in blank or to a specified party. Within the limits already named, interests are insurable whether complete or partial, defeasible or contingent; similarly loans on bottomry or respondentia, advance freight not repayable in case of loss, charges of insurance, also shipmaster’s, officers’ and seamen’s wages.

The owner of insurable property may insure its full value even though some third party have agreed or become liable to indemnify him in case of loss: a mortgagor has the same right of insuring to full value; while a mortgagee may insure only up to Value. the sum due or to become due to him under the mortgage, unless the mortgagee is insuring for the benefit of the mortgagor as well as for himself, in which case, even though he insure in his own name only, he may insure up to the full value. A consignee may insure in his own name the total amount of his interest and that of others for whose benefit he insures. Where no special contract is made between insured and underwriter, the insurable value of certain matters of insurance is ascertained as follows:—Ship—Her value at the commencement of the risk, including outfit, provisions, stores, advances of wages, and any other outlays expended to make the ship fit for the voyage or period of navigation covered, plus cost of insurance upon the whole. In the case of a steamship, the word “ship” includes machinery, boilers, coals and engine stores. In the case of a vessel engaged in a special trade, the word “ship” includes the ordinary fittings necessary for that trade. Freight (whether paid in advance or not)—The gross amount of freight at the risk of the assured, plus cost of insurance. Goods—The prime cost, plus expenses of and incidental to shipping and cost of insurance. Other interests—The amount at the insured’s risk when the policy attaches, plus cost of insurance.