MARINE INSURANCE.

Southland Times, Volume I, Issue 32, 13 August 1864, Page 3

MARINE INSURANCE.

(From the" Bombay G-azette.'") : Among notable exceptions to general rules ' we may reckon the admitted ignorance of the great bulk of the mercantile community of the laws applicable to commercial transactions of every day occurrence. The instance which leads us to the remark is the frequent occurrence during the last few months of law-suits with reference to policies of marine insurance, and the manifest injustice done to the insured by the operation of the law as laid down by the highest authorities in India and at home. How many a merchant has found to his sorrow no less than his surprise, in the occurrence of a casualty at sea the terrible import of that seemingly harmless little phoase " free of particular average " or as it at times appears in a still more unobtrusive form, simply as F. P. A.? The worst of systems, however, is workable where there exists with 'it a strongsubstratum of good faith and common sense, and it is thus alone that our insurance law is suffered to remain in its present lamentable state of intricacy. Underwriters at home and abroad find it their interest to settle claims in a liberal spirit without reference to the strict technical rights of the insurers to resist a claim, and the intervention of the pure man of business — the broker by whose instrumentality the polir-y of insurance is usually effected — operates not seldom to settle any disputed point without either party " putting the matter into the hands of his solicitor." The whole subject of marine insurance lies buried under a heap of technicalities, the precise origin of which is lost in the obscurity of history, and the meaning of which in their present acceptation is matter of no unfrequent controversy among members of the legal profession. We would venture to say that few of our merchants even of largest experience could give a tolerably decent definition of words in every day use, such as " constructive total loss " and • : general " or " practical average." As aumstance of the bewildering suppositions on which even " dicta " of legal sages are based we may note how in the most recent treatises on the word " average " is laid down as bearin g under two different circumstances totally different interpretations. Wecanwellimaginetheperplexityofour model merchant who shall endeavour in the plainest case to gain an insight into the principles on which justice is to be meted out to him. If his goods have been thrown overboard to lighten the ship, and thus provide for the safety of the goods of others, and he seeks compensation for the loss mcc urred, h e finds under the chapter applicable to his case that he must master the Lex JBhodia dejactu&nd the corollaries which in the lapse of ages have engrafted themselves on that aged stem. In such circum-. stances he becomes familiar with the phrase " f-eucral average," which he comes to look upon as synonymous with general contribution by the co- owners of ship and cargo towards making good the loss he has sustained. Its etymology lie is told has baffled the research of Emerigon and Benecke, but he is consoled by the information that for all practical purposes he may use the words as equivalents of deterioration by the effects of seawater. Impressed with the fatal notion that one of these formidable phrases is at length his own, we may suppose him daring enough to attempt a still deeper insight into the arcana of merchant shipping law ; his impression being perhaps very considerably strengthened by a letter of the underwriters of his argosy making an appointment for the " adjustment of general average." A sad disappointment awaits our friend, as he listens to his attorney's explanation of the words " warranted free of average," which occur in the policy, on the strength of which he has entrusted his goods to the deep sea. His lawyer tells'hhn that thereby the underwriter who has just affixed his name to it stipulates as to certain articles (for 'the definition of which he is referred to a document,, to which he is constantly referred as the " common memorandum") : that he shall be free from liability for any extent of deterioration by sea damage however great, that does not amount to total loss, and that as to certain othe r articles, he makes the same stipulation as to all sea damage which does not amount to five per cent, of the prime cost or insured value, it boing of course underfetood that if the loss be total, he engages to pay the full amount. ; Staggering under- : the load of this apparently irreconcilable mass of verbiage , his, h.eartj.ia-ils .Mm as he. finds himself fac 3 to face with other branches of the, sany family under the titles_of " gross average,' " customary average," " petty average, and ":: particular average;" A gleam of

comfort comes to him as he finds i^-fearnedi ' ]^suraneey 3^s^^ produced '-by the use of^ therwords", general average,''^ pi^ 'denoW the land; of loss' whien giVeVa felaim to general compensation. ■ Mj Perhaps) " < AtEe > ftliopeless. straggler after truth to himself, " it is the peculiarity; of Jaw.^o- ? have thus complicated V" naturally 1 simple code." The. first lawyer he consults assures him that ? 'our own ftext-writers are 1 'aniong, ; the clearest on this species of law, and that ijheYlaws of j foreign, countries t differ|; so widely from ours and .each other as to render the result- -of a f reference to them a curious rather than a useful investigation, are\farifrom desiring-: .our; to turn lawyers^ but there is a long interval between .any .sTich.^irei and a^/ iearty wish, which we confess to' entertain, that the ;law. on the ; subjeet ; 6f marine insurance may ere long engage the ; attention of the mercantile community^ 1 and ? be brought into something like conformity with the rules of .natural, justice. ; - ; >, ;< ; .i - k >.