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Marine Insurance: A Legal History [Kietas viršelis]

Rob Merkin

Formatas: Hardback, 1538 pages, aukštis x plotis: 244x169 mm
Išleidimo metai: 30-Nov-2021
Leidėjas: Edward Elgar Publishing Ltd
ISBN-10: 1788116747
ISBN-13: 9781788116749

Kitos knygos pagal šią temą:

International maritime law
Insurance law
Maritime history - (Šiuo metu turimos knygos: 1 prekės)
Shipping law

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Formatas: Hardback, 1538 pages, aukštis x plotis: 244x169 mm
Išleidimo metai: 30-Nov-2021
Leidėjas: Edward Elgar Publishing Ltd
ISBN-10: 1788116747
ISBN-13: 9781788116749

Kitos knygos pagal šią temą:

International maritime law
Insurance law
Maritime history - (Šiuo metu turimos knygos: 1 prekės)
Shipping law

Pastovi nuoroda: https://www.kriso.lt/db/9781788116749.html

Raktažodžiai:

This authoritative work forms a comprehensive examination of the legal and historical context of marine insurance, providing a detailed overview of the events and factors leading to its codification in the Marine Insurance Act 1906. It investigates the development of the legal principles and case law that underpin the Act to reveal how successful this codification truly was, and to demonstrate how these historical precedents remain relevant to marine insurance law to this day.

Beginning with the pivotal year of 1756, Rob Merkin QC organises his analysis era by era, situating the leading cases and emerging fundamentals of the marine insurance industry in the context of external events such as war, the growth of free international trade, and the expansion of empire. Offering insight into the origins of familiar legal principles in the field, the book provides a deeper understanding of the legal framework within which historical events took place and how this shaped both the development of marine insurance law and the political and economic circumstances surrounding it.

Key features include:

In-depth research by one of the leading experts in marine insurance law Context for and therefore deeper understanding of legal principles in the field An authoritative account of the development of modern law of marine insurance through its historical roots.

Legal historians interested in marine insurance and international maritime law more broadly as well as other historians of the period will find the depth of research and breadth of coverage in this book invaluable. Its grounding of important principles in their historical context will also be useful to practising lawyers in the field grappling with current marine insurance issues.

Recenzijos

This is a monumental work which deserves a readership amongst insurance lawyers and professional insurers, and a wider readership amongst those who are interested in commercial and social history. -- Peter MacDonald Eggers, The Journal of International Maritime Law The long stability of the Marine Insurance Act 1906 gives the impression that it is the culmination of everything that needed to be said about marine insurance. Anyone who wants to look behind the serene, unruffled exterior of the Act will discover that it masks a long and unsettled history from a time when maritime trade was hotly contested. There could be no better companion in exploring that history than Professor Merkins endlessly fascinating new book. -- Martin Davies, Lloyds Maritime and Commercial Law Quarterly The book provides a history of marine insurance law from 1756-1906 and, in particular, highlights the fascinating influence of war and conflict on the development of insurance law and practice. This is a history of trade and conflict through the prism of law and will be of interest not merely to historians, but also to practitioners who need to understand how and why particular clauses were developed and the contemporary understandings which underpinned the drafting of the Marine Insurance Act 1906. -- Professor Nick Gaskell, University of Queensland, Australia This monumental and meticulous work by one of the leading authorities in insurance law is the first to address comprehensively the history of the legal provisions and jurisprudence relating to marine insurance. Focussing mainly on British, American and European history, it will prove an invaluable and fascinating resource for all students and scholars across a range of disciplines who require a definitive exposition of the evolution of this body of law. -- Chantal Stebbings, University of Exeter, UK 'Rob Merkin's remarkable book delivers much more than its rather modest title promises. It includes a broad-ranging history, both political and nautical, of three centuries of wars and alliances affecting English and American trade. It shows how war, prize, capture by pirates and privateers, blockades, slavery, and the depredations of Confederate cruisers affected the development of the principles of English marine insurance law and practice. Dense and detailed but easy to follow, the connections that it explains are invaluable.' -- Martin Davies, Tulane University Law School, US

Volume I

Foreword

xxi

Sara Cockerill

Preface

xxiii

Table of cases

xxviii

Table of decisions

cxxix

Table of legislation

cxxvi

1 The Framework Of The Law Of The Sea

A Setting The Scene

i The importance of the sea

B The State And Sea Power Up To 1756

i Early naval contemplation

ii Towards a navy

iii The Commonwealth and the first Dutch War

iv The restoration and beyond

C Trade And Empire

i Freedom of trade and protectionism

ii The growth of Empire

iii The Navigation Acts

iv Trading in time of war

v Merchant seamen

D Regulating The Navy

i Recruitment

ii Controlling the crew

iii The navy as protector

iv Foreign service

v The conduct of war

vi Greenwich Hospital

E Institutions

i The High Court of Admiralty

ii The Cinque Ports

F Piracy

i The meaning of piracy

ii Punishing pirates

iii Measures against piracy

G Prize Law And Privateers

i The concept of prize law

ii Letters of Reprisal and Letters of Marque

iii Prize law in 1756

iv The allocation of prize money

v Other financial interests

vi Ransom

vii Pillage

viii Joint capture

ix Recapture

2 Marine Insurance In 1756

A The Insurance Market

i The origins of insurance

ii Classes of insurance

iii Insurance disputes

iv Insurers

v The Bubble Act 1720

vi The growth of Lloyd's

vii The state of the law

B Insurable Interest

i The common law

ii The Marine Insurance Act 1745

C Coverage Of Marine Policies

i Scope and formalities

ii Duration of cover

iii Conducting the voyage

iv Insured perils

v Other policy features

D The Growth Of Insurance Law Doctrines

i Non-disclosure and misrepresentation

ii Warranties

iii Illegal insurances

iv Loss, salvage and indemnity

v Subrogation

vi Insurance frauds

E Shipowner Liabilities

i Wreck and wreckers

ii Rescuers and salvage rights

iii Other liabilities

3 War, Diplomacy And The Americas: 1756 To 1783

A The Seven Years War

i The American prelude: 1754 to 1756

ii The outbreak of war in Europe

iii The war in Europe

iv The war in the west

v The war in the east

vi Settlement

B Prize Law In The Seven Years War

i The situation in 1756

ii Neutrality

iii The Rule of 1756

iv The doctrine of continuous voyage

v Recapture

C Colonial Trade 1763 To 1774

i Trade legislation in 1765

ii The Stamp Act 1765

iii Retreat, renewal and repeal

iv The Boston Tea Party and its aftermath

D The American War Of Independence

i Events in 1775

ii The war in 1776 and 1777

iii French intervention: 1778 and 1779

iv War to peace: 1780 to 1783

v Spanish and Dutch intervention

vi The Caribbean

vii The peace settlement

E British Prize Law In The War Of Independence

i Legal issues in the Rebellion

ii Neutrality under English law

iii Procedure on capture and condemnation

iv The allocation of the proceeds

v Pre-emption

vi Joint capture

vii Recapture

viii Ransom

F American Prize Law In The War Of Independence

i Adoption of prize law

ii Hearings and appeals in prize cases

iii Enemy and neutral property

iv Recapture

v Joint capture

vi Allocation of the proceeds

vii The contribution of the war at sea

4 Perils On The Seas: 1783 To 1815

A Trade After American Independence

i The outlook in 1783

ii The East India Company

B The French Revolutionary Wars 1793 To 1802

i The French Revolution 1789 to 1799

ii The outbreak of war

iii The main events in the war

iv Domestic restrictions

C The War Against Napoleon

i The resumption of hostilities

ii The Continental System

iii The course of the war

iv The post-war settlement

D Prize Law In The Wars Against France

i The legislation

ii The Court of Admiralty

E Neutrality

i Enemy property

ii The trading rights of neutrals

iii Contraband of war

iv Loss of neutrality

F Extension Of Prize Principles

i The Rule of 1756

ii The doctrine of continuous voyage

G Procedure

i Capture

ii Condemnation proceedings

iii The allocation of the proceeds

iv Head money

v Prize agents

H Special Cases

i Joint capture

ii Booty

iii Recapture of British property

iv Recapture of neutral property

v Ransom

I Blockade

i The significance of blockades

ii The validity of a blockade

iii Knowledge of a blockade

iv Breaking a blockade

v Defences

vi Consequences of breach

vii Termination of blockade

5 Anglo-American Trade And Relations: 1783 To 1815

A International Relations After U.S. Independence

i Trade in the post-revolutionary period

ii The outbreak of war in Europe

iii Citizen Genet and French privateering

iv The Neutrality Act 1794

v The Jay Treaty 1794

vi The 'quasi war' with France

vii The First Barbary War

B The Legal Implications Of Neutrality

i Embargoes and blockades

ii The Law of Nations

iii Impressment, Chesapeake and Little Belt

C The Napoleonic Trade Wars

i The operation of the Navigation Acts

ii The U.S. embargos

iii The descent into war

D The Anglo-American War Of 1812-1814

i The declaration of war

ii Trade measures

iii The course of the 1812-1814 War

iv Peace

v The Second Barbary War

E Prize Law During The 1812-1814 War

i Prize law in the war

ii Enemy property

iii Trading with the enemy

iv Recapture

v Search and arrest

vi Condemnation proceedings

6 Marine Insurance In An Era Of War: 1756 To 1815

A Introduction

i Developments in the era

ii Courts, judges and the judicial process

B The Insurance Market

i Stamp duty

ii The development of Lloyd's

iii The Lloyd's SG Policy

C Insurable Interest

i Marine Insurance Acts 1785 and 1788

ii Insurable interest and prizes

iii Lucena v Craufurd: initial proceedings

iv Lucena v Craufurd: subsequent proceedings

v The impact of Lucena v Craufurd in prize cases

vi Other illustrations of insurable interest

vii Reinsurance

D Good Faith And Fair Presentation Of The Risk

i Carter v Boehm

ii Features of the duty

iii Material facts

iv Facts that did not have to be disclosed

E Insurance Warranties

i The nature and formation of warranties

ii Place and date of sailing

iii Convoy

iv Protecting the vessel

v Neutrality and nationality

vi Shipping documents

vii Seaworthiness

7 Marine Insurance In An Era Of War: 1756 To 1815

A Illegality

i Illegality of the insured risk

ii Illegality of the insurance

iii Trading with the enemy

iv The licensing system

v Illegal acts committed in the course of the adventure

B The Voyage

i Change of voyage and deviation

ii Delay

iii Barratry, deviation and change of voyage

iv Increase of risk

C Insured And Excluded Perils

i Perils of the seas and all other perils

ii Fire

iii Causation

D The Free Of Capture And Seizure Warranty

i Development

ii Causation and capture and seizure

iii Seizure by the assured's own government

E The Meaning Of Loss

i Total loss and seizure

ii Loss of voyage

iii Loss and ransom

iv Abandonment and the nature of the loss

v Missing vessel

F The Measure Of Indemnity

i General

ii Double insurance

iii Embargo and capture: freight earned after release of vessel

iv Embargo and capture: crew expenses and wages

v The cost of repairs: the one-third deduction

G Brokers

i The role of brokers

ii Financial issues

H Other Marine Insurance Principles

i Return of premium

ii Effect of adjustment

iii Deliberate destruction and fraud

I Shipowner Liabilities

i Wreck

ii Salvage

iii General average

iv Charterparties and cargo

v Collision

vi Limitation

Volume II

8 Trade And Diplomacy After 1815

A Freedom Of Trade

i Trade with the U.S.

ii The repeal of the Navigation Acts

B The European Colonies In The Americas

i The Spanish and Portuguese Empires

ii The U.S. Neutrality Act 1818

iii The Foreign Enlistment Act 1819

iv Other prosecutions under the 1819 Act

v Alaska

vi Hawaii

vii Texas and Mexico

C The Crimean War

i Background

ii Legal implications of the outbreak of war

iii Transitional protection for Russian trade

iv The course of the war

v Prize principles

vi Protection of neutrals

vii Allocation and joint operations

viii Blockade

D The Demise Of Economic War At Sea

i The Declaration of Paris 1856

ii The 1864 prize legislation

9 Marine Insurance In An Era Of Peace: 1815 To 1861

A The Insurance Market

i Repeal of the Bubble Act

ii The development of insurance companies

iii The growth of mutuality

iv Bottomry

v Stamp duty

B Insurable Interest

i The requirements for a valid policy

ii Insurable interest in vessel and cargo

iii Insurable interest and bailees

iv Insurable interest in freight

C Good Faith And Fair Presentation Of The Risk

i Utmost good faith

ii Presentation of the risk: general principles

iii Materiality and material facts

iv Facts that did not have to be disclosed

D Warranties

i Express warranties

ii Features of warranties

iii Sailing warranties

iv Warranty of seaworthiness

v Warranty of seaworthiness and time policies

E Illegality

i Illegality of the insured risk

ii Illegal acts committed in the course of the adventure

iii Blockades

iv Insurance of wages

F The Voyage

i Deviation, delay and change of voyage

ii Increase of risk

G Insured Perils

i Commencement and termination of risk

ii Stranded vessel

iii Insured perils and causation

iv Perils of the seas

v Crew negligence

vi Jettison

vii Failure to arrive

viii Piracy

ix Barratry

x All other perils, losses and misfortunes

xi Free from capture and seizure

H Loss And Indemnity

i Abandonment and notice of abandonment

ii Loss of possession

iii Loss in the form of damage: vessel

iv Loss in the form of damage: cargo

v Loss of freight

vi Loss by 'abandonment' of the subject matter

vii Loss of voyage

viii The timing of the calculation

ix The measure of indemnity

x Successive losses and merger

xi Under-insurance and average

xii Subrogation

xiii Double insurance and contribution

I Brokers

i Placing business

ii Payment of premiums and losses

J Other Marine Insurance Principles

i Return of premium

ii Insurance fraud

K Liabilities

i Background: the legality of liability insurance

ii Wreck

iii Salvage

iv General average

v Cargo claims

vi Crew claims

vii Collision liability

viii Passenger claims

ix Harbours, docks and piers

x Limitation

10 Slavery And The Slave Trade

A History Of Slavery And The Slave Trade

B The Abolition Of Slavery In Britain

i The position under English law

ii Judicial abolition: Somerset's case

iii Contracts for freedom

iv The abolition of slavery in the colonies

C The Abolition Of Slavery In The U.S.

i The incidence of slavery

ii The nature of slavery

iii Compromises on slavery

iv Dred Scott

v Abolition

D Abolishing The Slave Trade: England

i The reform process

ii The Dolben Acts 1788-1799

iii Abolition

E Enforcement

i The reach of English law

ii Resolution: the use of treaties

iii Rewards for captors

iv Consolidation

v Australia

F Abolishing The Slave Trade: The U.S.

i The ban on international slaving

ii The ban on importation

iii Enforcement

iv Webster-Ashburton Treaty 1842

v Suppression Treaty 1862

G International Abolition Of The Slave Trade

H The Insurance Of Slaves

i The common law

ii Admiralty principles

iii Statutory restrictions on insurance

11 The American Civil War And British Neutrality

A The Civil War: Key Events

i Introduction

ii The U.S. Supreme Court

iii Secession and its legality

iv The course of the Civil War

v Peace

B The Confederate Economic Civil War

i The adoption of privateering

ii The fate of privateering

iii Seizure of vessels by passengers

C The Union Economic Civil War

i The blockade

ii The attack on Confederate property

iii Legislation on prize

iv Privateering

v Treatment of Confederate privateers

D British Neutrality

i The Law Officers of the Crown

ii The attitude in Britain

iii The neutrality proclamation

iv Allegations of partiality

v The Trent affair

vi Neutrality and trade

vii Neutrality and port facilities

viii British ports and prizes

ix British subjects in the U.S.

x Neutrality in the course of the war

E The Operation Of The Union Blockade

i Running the blockade

ii The blockade and the outbreak of war

iii Notification of the blockade

iv The existence of the blockade

v Breach of the blockade

vi The principle of continuous voyage

vii Defences to running the blockade

viii Procedural issues

ix Evaluation and aftermath

12 The Confederate Cruisers

A The Opposing Navies

i The Union Navy

ii The Confederate plan

iii Implementation of the Confederate programme

iv Shipbuilding in Britain

v Shipbuilding in France

vi Significance of the Confederate Navy

B The Florida

i Construction and departure

ii Events at Nassau

iii The activities of the Florida

iv Demise

C The Alabama

i The importance of the Alabama

ii Initial doubts as to the 290

iii The reference to the Law Officers

iv Competing theories

v The escape and the verdict

vi The early activities of the Alabama

vii Later career and demise

D The Alexandra: Testing The Foreign Enlistment Act

i The building of the Alexandra

ii The prosecutions

iii Aftermath

E Later Civil War Prosecutions

i The Rappahannock

ii The Georgia

F The Shenandoah

i Origins: the Sea King

ii The career of the Shenandoah

iii After leaving Melbourne

iv The prosecution of Corbett

G Other British-Built Vessels

i The nature of the vessels involved

ii The Scottish Sea Monster

iii The 'Laird Rams'

iv Blockade runners

v The Chinese flotilla

H Disputes Over Other Vessels

i The Sumter

ii The Nashville

iii The Retribution

iv The Chickamauga

v The Tallahassee

vi The use of tenders

13 The Alabama Arbitration

A The Domestic Aftermath

i Post-war legal issues

ii Claims against insurgents

B Anglo-American Relations

i The leading players

ii The issues between the nations

iii The bargaining begins

iv Canada

v The Johnson-Clarendon Treaty

vi Sumner's speech

vii The exclusion of Canada

C The Treaty Of Washington

i Rose amongst the thorns

ii Negotiating the treaty

iii Adopting the treaty

iv Non-cruiser compensation claims

v Fisheries

vi Other issues

D The Arbitration

i Why arbitration?

ii The terms of reference

iii The criteria for liability

iv The tribunal and representation

v The parties' cases

vi The problem of the indirect claims

vii The proceedings

viii The majority award: legal principles

ix The majority award: individual cases

x Cockburn's dissent: legal principles

xi Cockburn's dissent: application

xii Analysis of the award

xiii The reception of the award

E Distribution Of The Proceeds Of The Award

i The distribution legislation

ii Nature and source of damage

iii Nationality and allegiance

iv British citizens

v Insurance

F Neutrality And War At Sea: The Aftermath

i The demise of the 1819 Act

ii The Foreign Enlistment Act 1870

iii Testing the Declaration of Paris

iv Other international conventions

14 Marine Insurance In An Era Of Neutrality: 1861 To 1875

A The Insurance Market

i Regulation

ii Lloyd's

iii Bottomry bonds

iv Stamp duty

v The slip

vi Reinsurance

B Insurable Interest

i Valued policies

ii Settled principles

iii The transatlantic cables

iv Third-party interests

v Assignment

C Utmost Good Faith

i Scope of the duty

ii Material facts

iii Misrepresentation

iv Non-disclosure

v The knowledge of the insurer

vi The remedy for breach of duty

D Warranties

i The creation of warranties

ii Warranty of seaworthiness: the common law

iii Warranty of seaworthiness: statutory intervention

iv Seaworthiness of cargo

v Neutrality

E Illegality

i Principles of illegality

ii Illegality in performance

F The Voyage

i Delay, deviation and change of voyage

G Insured And Excluded Perils

i Commencement and termination of coverage

ii Fortuities and deliberate acts

iii Perils of the seas and other perils

iv Fire

v Barratry

vi Restraint of princes

vii Inherent vice

viii The free of capture and seizure warranty

ix Piracy

H Loss And Indemnity

i Loss and abandonment

ii Damage to the vessel

iii Damage to cargo

iv Loss of freight

v Loss by sale

vi Loss by seizure

vii Seizure and prize proceedings

viii Consecutive losses

I The Suing And Labouring Clause

i Nature of the clause

ii Failure to mitigate

J Subrogation

i The assured's rights

ii Indemnity, valuation and subrogation

iii Insurance and the-U.S. Act of 1874

iv Recouping the losses: Burnand v Rodocanachi

v Aftermath

K Brokers

i Financial aspects

ii Duties of brokers

iii Brokers' open covers

L Other Marine Insurance Principles

i Fraudulent claims

ii Double insurance and contribution

iii Return of premium

M Liabilities

i Admiralty proceedings

ii Wreck

iii Salvage

iv General average

v Cargo claims

vi Collision liability

vii Passenger claims

viii Limitation

15 Consolidating The Empire

A Governing The Empire

i Control from Britain

ii English law in the Empire

iii Colonial governors

B Canada

i The 1815 settlement

ii The 1837 rebellions

iii Formation of the Dominion of Canada

C The Eastern Empire

i India

ii China

D The Pacific Empire

i Australia

ii New Zealand

E Africa

i Egypt

ii The scramble for Africa

iii South Africa

16 Marine Insurance In An Era Of Empire: 1875 To 1906

A The Insurance Market

i Lloyd's

ii Mutual associations

iii Stamp duty and slips

iv Market wordings and the Institute of London Underwriters

v Reform of the law

B Insurable Interest

i Valued policies

ii Honour policies

iii Illustrations of insurable interest

iv Identification of interest

v Assignment

C Utmost Good Faith

i Material facts

ii Facts known by the insurer

iii Imputation of knowledge of agent

iv Post-contractual disclosure obligations

D Warranties

i Express warranties

ii Warranty of seaworthiness

iii Seaworthiness: statutory intervention

E Illegality

i Illegality of the risk

ii Insurance of wages

F The Voyage

i Deviation, delay and change of voyage

ii Incorrect voyage

G Insured And Excluded Perils

i Duration of the risk

ii Stranded vessel

iii Causation: general principles

iv Causation and freight claims

v Perils of the seas: mechanical failure

vi Perils of the seas: collisions

vii Fire

viii Barratry

ix Restraint of kings, princes and people

x All other losses and misfortunes

xi Inherent vice

xii Free of capture and seizure

H Loss And Indemnity

i The assured's retention: vessels

ii The assured's retention: cargo

iii Loss of or damage to vessel

iv Loss of or damage to cargo

v Loss of freight

vi Actual total loss and constructive total loss

vii The notice of abandonment

viii Timing issues

I The Suing And Labouring Clause

i Averting an insured peril

ii Expenditure incurred by the assured

iii Salvage awards

iv The amount of recovery

v The duty to sue and labour

J Subrogation, Contribution And Salvage

i The scope of subrogation

ii Voluntary payments by insurers

iii Subrogation and insured loss

iv Double insurance and contribution

v Salvage of the insured subject matter

K Brokers

i Duties of brokers

ii Financial aspects

L Other Marine Insurance Principles

i Return of premium

ii Reinsurance

M Liabilities

i Admiralty proceedings

ii The incidence of liability insurance

iii Wreck

iv Salvage

v General average

vi Cargo claims

vii Crew claims

viii Liability for collisions

ix Passenger claims

x Damage to harbours, docks and piers

xi Limitation of liability

17 The Marine Insurance Act 1906

A The Passing Of The Marine Insurance Act 1906

i Mackenzie Chalmers and Farrer Herschell

ii The early Marine Insurance Bills

iii Opposition to the Bill

iv Success at last

v Postscripts

B The Content Of The Marine Insurance Act 1906

i Marine insurance

ii Insurable interest

iii Insurable value

iv Disclosure and representations

v The policy

vi Double insurance

vii Warranties, &c.

viii The voyage

ix Assignment of policy

x The premium

xi Loss and abandonment

xii Partial losses (including salvage and general average and particular charges)

xiii Measure of indemnity

xiv Rights of insurer on payment

xv Return of premium

xvi Mutual insurance

xvii Supplemental

xviii Schedules

Rob Merkin KC, LLD, Professor of Law, Reading University, UK; Distinguished Professor of Law, School of Comparative Law, Chinese University of Politics and Law, China; Honorary Professor of Law, University of Auckland, New Zealand; Professor Emeritus, University of Exeter, UK; and Special Counsel, Duncan Cotterill, New Zealand

Marine Insurance: A Legal History [Kietas viršelis]

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