MacKinnon LJ said: ‘There are two massive volumes of Arnould which purport to deal with The Law of Marine Insurance. They now contain over 1800 pages, and the Marine Insurance Act, 1906, is entitled ‘An Act to codify the Law relating to Marine Insurance’. The truth is that this law of marine insurance is nothing more than a collection of rules for the construction of the ancient form of policy and such additions as are from time to time annexed to it. The ancient form dates back at least to the sixteenth century, and it is a document which the late Sir Frederick Pollock characterized, with justifiable asperity, as ‘clumsy, imperfect, and obscure’. Many of the imperfections and obscurities had to be resolved by Lord Mansfield, with the assistance of his famous special juryman. A striking example of his task in that respect is Lewis v Rucker [(1971) [1761] EngR 46; 2 Burr 1167]. The question arose of the proper method of assessing a particular average loss of goods. The obvious thing would be to see what the contract of the parties provided, but it provided nothing whatever. The assured put forward one method of assessment; the underwriters put forward another. Lord Mansfield decided for the latter, saying: ‘The special jury, amongst whom there were many knowing and considerable merchants, found the defendant’s rule of estimation to be right, and gave their verdict for him. They understood the position very well, and knew more of the subject of it than anybody else present.’ The rule so settled is now embodied in s 71 of the Marine Insurance Act, 1906. But, in truth, it is an implied term in the old form of policy, added to its imperfect expression by the practice of assured and underwriters as found by the knowing and considerable merchants in 1761.
Innumerable clauses have from time to time been devised to supplement the ancient form. Unhappily tradition seems to have caused them also in very many cases to be ‘clumsy, imperfect, and obscure’, and the fact that Arnould’s work now covers 1800 pages is largely the result of that tradition. Oddly enough, the tradition has even infected the Legislature with a microbe of inaccuracy. In 1746 an Act (19 Geo 2 c 37) was passed which made re-insurance illegal, except in the case where ‘the assurer shall be insolvent, become a bankrupt, or die’. It is inconceivable that an insolvent underwriter should desire to re-insure, and obviously the evil aimed at was double insurance by the assured. ‘Re-insurance’, however, had then its present well known meaning, and the draughtsman of the Act used the wrong word in order to maintain the tradition of obscurity.
I hope this irrelevant exordium is venial . .’
MacKinnon LJ
[1941] 1 KB 225
England and Wales
Cited by:
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Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.666167
