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The promulgation of this legislation embodying the collective wisdom and learning of France, and adding new dignity to the throne of her king, Louis XIV, was due to the genius and ability of that Prince's great minister-with whose name it must for all time be associated,-Jean-Baptiste Colbert.

Now, it is no small compliment to its unknown compiler, that the little Guidon should in after years have been the foundation on which was built up in the Ordonnance all that is there to be found on the subject of insurance. Of this Pardessus gives ample acknowledgment when he says1, 'Aussi presque toutes les décisions du Guidon ont-elles été adoptées et converties en loi par l'Ordonnance de Louis XIV, du mois d'août 1681, qui forme encore (1831) le droit commun de l'Europe.'

The law of Insurance is set out in Chapter vii of Book iii, in Articles 42 and 45 of which is reproduced the particular legislation of the Guidon, just considered.

Article 42 re-enacts the doctrine of Protestation, which, as Valin 2 in a note points out, is in accordance with the earlier teaching of the Guidon.

Article 45 is as follows 3:

'En cas de naufrage ou échoument, l'assuré pourra travailler au recouvrement des effets naufragés, sans préjudice du délaissement qu'il pourra faire en temps & lieu, & du remboursement de ses frais, dont il sera cru sur son affirmation, jusqu'à concurrence de la valeur des effets recouvrés,'

The principle of permission to work for the recovery of property is accepted by Valin, as it previously had been by Cleirac, without comment, its inherent propriety no less than its ancient origin having, it would seem, long removed it from the region of controversy. But Valin is careful to explain that this permission has relation only to the ultimate right of the assured to abandon 1, which right was not to be prejudiced thereby; while in many cases-if he would avoid the imputation of fraud-it was the bounden duty of the assured to assist his underwriters; as, for example, where being on board with his merchandise, he was in a position to exercise effective control over it.

If then a duty in 1681, it must a fortiori have been a duty in the early days of insurance, out of which arose the rules afterwards to

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p. 371.

2 Commentaire sur l'ordonnance de la marine du mois d'août 1681; Ed. Rochelle, 1766, p. 96. This work first appeared 1760. Valin died 1765.

3 Ibid., p. 98.

Emerigon also states this in very clear terms, Traité des Assurances, 1783; éd. par Boulay-Paty, Rennes, 1827, tom. ii, p. 235.

be embodied in the Guidon, when it was customary for a merchant to accompany his goods, and act as his own supercargo.

And, secondly, the reimbursement to the assured of the expense incurred by him in attempting the recovery of his property. Of this Valin says: 'L'assuré étant autorisé à faire travailler au sauvement, il est juste qu'il soit remboursé des frais qu'il aura faits à ce sujet.'

Here, again, there would seem to be no ground for suggesting that in this respect the Ordonnance was propounding new law.

No such view is put forward by Valin, and probability points in the opposite direction.

For as it cannot solemnly be contended that justness and the observance of it began with Louis XIV, this particular justness must always have supported the rule of commerce out of which it sprung, a rule which without this support would quickly have fallen into disuse.

Lastly, it will be seen that the extent of the underwriters' liability is strictly limited to the value of the property recovered. The result of this is that any settlement in excess of a total loss of the sum insured is effectively shut out from the policy.

Pothier, indeed, discussing this article, lays it down that an option rests with the underwriters of surrendering the goods in payment of their salvage, thus:

'Mais comme les assureurs ne sont tenus de ces frais, suivant le dit article (45), que jusqu'à concurrence de la valeur des effets recouvrés, les assureurs peuvent les laisser à l'assuré pour les frais'.'

From this it results, that when nothing has been recovered the assured-like an unsuccessful salvor-receives no recognition of his service, the cost of which, however well intentioned towards his underwriters, must be borne by himself alone. This must be remembered.

As in 1681, so it is to-day a rule of law, that the payment of a total loss of the sum assured exhausts the liability of an underwriter under his policy contract, and it would be difficult to show that a different rule had at any previous time obtained 2.

Had this law been a creation of Ordonnance, such an innovation could not have escaped the notice and critical comment of Valin,

1 Traité du contrat d'assurance (1767/8); éd. par Bugnet, Paris, 1847; tom. v, P. 317, s. 131.

Although in its present connexion this statement will scarcely provoke criticism (Lohre v. Aitchison (1879) 4 App. Cas. 755), occasions not infrequently arise where it is sometimes thought that the rule has been held to have no application. See Le Cheminant v. Pearson (1812) 4 Taunt, 367, 13 R. R. 636, at p. 642.

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whose silence, alone, is wellnigh conclusive. But Emerigon is silent too; Emerigon, who, in respect of the law of Marine Insurance, was to France what Lord Mansfield at the same period was to England', and of whose generous and scholarly assistance the learned commentator has himself made grateful acknowledgment, in a passage eloquent and sincere which concludes with these words:

'Il m'en a donc fait passer une copie (de tout ce que par une étude assidue et réfléchie il avoit recueilli de décisions et d'autorités) dont j'ai fait un tel usage, que presque tout ce que l'on trouvera de bon dans ce Commentaire, quant à la partie de la Jurisprudence, est en quelque sorte autant son ouvrage que le

mien 2.'

And when it is remembered that between the year 1500 and the publication of the Ordonnance the Sue and Labour clause had been introduced 3, which, though not to be found in every policy, had by 1681 been extensively adopted, it may well have been that it was found expedient to define in clear terms what that law really was which parties to the contract of Insurance, not forbidden to modify, could never be permitted to ignore.

Accepting then the theory enunciated by Marshall (p. 407 above) that 'particular ordinances have seldom gone farther than to define and to sanction by legislative authority those principles which were already received as law in all commercial countries,' the foregoing arguments are put forward as justifying the proposition that the wording of Articles 42 and 45 is but the language necessarily accurate and precise, in which-without adding to them-the corresponding but cruder decisions of the private compiler of the Guidon de la Mer were adoptées et converties en loi' (Pard., p. 409 above) by the professional draftsmen of the Ordonnance de la Marine.

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If this be so, it must follow that the right of the assured to work for the recovery of his merchandise in danger of destruction, without thereby imperilling his ultimate right to abandon if so need be, and the co-relative liability of his underwriters to make good to him the expense so incurred up to the value of the property

1 Emerigon was Judge of the Court of Admiralty at Marseilles, 1748-61, when he retired and devoted himself to study till his death in 1784. Lord Mansfield was Chief Justice of the King's Bench, 1756-88, and died 1793.

2 Valin, Pref. ix.

The earliest example of a Sue and Labour clause to be found in the Select Pleas of the Court of Admiralty, edited by the Selden Society, is-with accidental appropriateness-contained in a contemporary translation of a French policy bearing date London, January 8, 1565 (vol. ii, p. 56).

This volume sets out two Italian policies of the years 1547 and 1548, and five English policies of the years 1555, 1558, 1559, 1562, and 1563, in which the clause

is not to be found.

The earliest policy, known to the writer, in the English language, embodying it is dated London, February 15, 1613, and is reproduced in Martin's History of Lloyd's (1826) at p. 46, from the Tanner MS., No. 74, fo. 32, Bodleian Library, Oxford; see also Gow. Ins., 3rd ed., 1903, p. 319.

saved, were as early as 1500, customs of insurance having the force of law amongst the sea-faring countries of Europe.

It must, however, be confessed that there are two text-writers of great authority to whom this theory has not commended itself, Marshall and Arnould.

Marshall says:

'It was formerly doubted whether the insured could use his endeavours to recover the goods which had been lost, or in preserving such as had been saved, without waiving his right to abandon. To obviate this doubt a clause (sue and labour) was introduced into the policy, &c.1'

Arnould in similar language, free from ambiguity, propounds the same doctrine 2.

In support of his statement Marshall cites Casaregis disc. iii, sec. 14, where in effect, it is said that if the assured have authority from his underwriters to attempt a recovery, his acts are deemed to be theirs, and he need not abandon. But when he has not their authority, he retains his status of owner, and in order to recover a total loss must abandon forthwith 3.

Now whether this authority is given independently of the policy, or is to be gathered from the Sue and Labour clause, the dictum of this learned Florentine lawyer is in direct conflict with the Guidon and the Ordonnance, which show that a right to the assured to labour for the recovery of his goods, without thereby prejudicing his right of abandonment, had existed from very early times 3. And this is admitted to be so by Emerigon, who citing the same reference says:

'On avait douté si l'assuré, en recouvrant les effets sauvés, préjudiciait à ses droits vis-à-vis des assureurs. Cette difficulté a été aplanie par l'article 45, titre des assurances, qui permet à l'assuré de travailler au recouvrement des effets naufragés sans préjudice du délaissement qu'il pourra faire en tems et lieu1.'

Arnould, on the other hand, relied on the more recent authority of Mitchell v. Edie 5 (1787), where Ashhurst J. said :—

1 Marshall, at p. 340.

2 Arnould, Mar. Ins., 1st ed. (1848), vol. i, p. 35

3 Discursus Legales de Commercio, Florence, 1719, vol. i, pp. 11, 12. This is to be gathered from ss. 11-15 inclusive.

The particular section cited, no. 14, which read by itself, is not very instructive, runs: Et in his terminis quando assecuratores dederint talem facultatem assecuratis instandi pro huiusmodi recuperatione, omnes deinde actus facti ab assecuratis pro mercibus recuperandis, licet simpliciter gesti, & nulla de mandato facta fuerit mentio, attribui debent ipsis assecuratoribus mandantibus.'

This divergence of opinion coming from the land that gave birth to marine insurance, twenty-eight years after the appearance of the Ordonnance, is not without interest.

It seems strange that Emerigon, on whose support the two Englishmen had so often relied, should, in this important connexion, have been completely ignored. 51 T. R. 608; 1 R. R. 318.

'It is contended that the assured never waive their right to abandon, while they are managing in the best manner they can for the benefit of all concerned; and that argument is grounded on the common clause inserted in every policy, whereby he is authorized "to sue labour, and travail without prejudice to this insurance."

Now this clause does not in my apprehension warrant the position in so large an extent as it is contended for.

It seems to me that the meaning of the clause is, that till the insured have been informed of what has happened, and have had an opportunity of exercising their own judgment, no act done by the master shall prejudice their right of abandonment!'

But this, as shown, had long been anticipated by the Guidon and ratified by the Ordonnance, and is scarcely adequate to account for the presence in the policy of a stipulation of so elaborate a

nature.

What then was the object, the attainment of which was successfully effected by the introduction of the Sue and Labour clause?

And first it is to be observed that the clause, couched in general terms and not concerning itself with rights of the assured in respect of abandonment, contemplates the happening of any loss or misfortune. This has been clearly stated in Kidston & Empire Marine Ins. Co.1 (1866), where Willes J. said:—

'Not only the generality of the words, but also the subject-matter to which they relate, . . . point to the application of the clause to all cases in which the underwriter is saved from liability to loss, whether partial or total, and whether an abandonment does or may possibly take place or not.'

Suppose then that-as frequently happens-a vessel be driven by stress of weather to seek shelter in an intermediate port, and that, in order to enable her to complete the voyage insured, temporary repairs must there be effected; and further, that the cargo, of a perishable nature, being found wetted have to be discharged, dried, resorted, and repacked to render it fit to be carried on and delivered at destination in specie.

The repairs to the ship and the cost of reconditioning the cargo are alike charges contemplated by the clause, and the burden of them is cast upon the underwriters. Yet in this there is nothing which necessarily exceeds the responsibility imposed upon underwriters by the Ordonnance. But once again, suppose that after leaving her port of distress, the vessel with her cargo be totally lost before arriving at the terminus ad quem of the policy. What then? In such a case the assured, supported by the general law alone, would find himself without right to reimbursement of the

1 L. R. I C. P. 535.

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