Page images
PDF
EPUB

a hasty production, but the result of much labor and of a frequent and careful revision.

Another motive for the publication at this time of the Lecture and Notes remains to be stated. If the decision of the Court of Errors of New-York, in Alston v. The Mechanics' Mut. Ins. Co., (4 Hill, 330,) and that of the Supreme Court of Massachusetts, in Bryant v. The Ocean Ins. Co., (22 Pick., 200,) are erroneous, the error is of such practical importance, that it is highly expedient that it should be condemned without delay, by those who are competent to judge. A suitable expression of their opinions, it is hoped, will be drawn forth by the observations on those decisions, that the author has felt it a duty to make, (a)

The Preliminary Lecture, discussing the litigated question, whether Marine Insurance was known to the ancients, is published without alteration as it was delivered, as introductory to a course, of which unforeseen circumstances prevented the completion. That it conveys much practical knowledge in the usual sense of the term, is not pretended, but it will, perhaps, be read with some pleasure by those members of the profession who have cultivated an acquaintance with the civil law, and retain their love of classic learning.

(a) The opinion of Walworth, Ch., in Alston v. The Mech. Mut. Ins. Co., which should be read in connexion with the observations in Note IX, (p. 158,) will be found in the Appendix, p. 229.

[ocr errors]

CASES CITED IN LECTURE VII. AND NOTES.

A.

Allegre's Administrators v. Maryland

Ins. Co., 151. 166.

Alsop v. Coit, 58, 127.

v. Commercial Ins. Co., 161.

Alston v. The Mech. Mm. Ins. Co., 120,

139.

Anderson v. Pitcher, 138.

Andrews v. Essex Ins. Co., 104.

Astor v. Union Ins. Co., 218.

Atherton v. Brown, 221.

Aberdeen, Weir v. 174.

Alsop, Murray v. 124.

American Ins. Co., Carpenter v. 129.

Angerstein, Chaurand v. 168, 185.

Atlantic Ins. Co., Callaghan v. 126.

B.

Barber v. Fletcher, 176.

Barker v. Phcsn. Ins. Co., 101.

Baiter v. New England Ins. Co., 104.

Bean v. Stupart, 101.

Bell v. Carstairs, 68,177.

Berthon v. Loughman, 185.

Bize v. Fletcher, 59,130, 144.

Bowden v. Vaughan, 58,118,165.

Brine v. Featherstone, 66, 168.

Bryant v. Ocean Ins. Co., 151.

Bederley, Durell v. 184.

Berthon, Kenyon v. 101.

Blake, Middlewood v. 172.

Boehm, Carter v. 186.

Bovil, Driscol v. 227.

Bowen, Kemble v. 76,125,156, 193.

Brown, Atherton v. 221.

Brutton, Fillis v. 114.

Buchanan, Thompson v. 103.

C.

Callaghan V.Atlantic Ins. Co., 126.

Campbell v. Rickards, 189.

Carter v. Boehm, 186.

Carpenter v. American Ins. Co., 129.

Chapman v. Walton, 187.

Chaurand v. Angerstein, 168, 185.

Clason v. Smith, 215.

Court v. Martineau, 160.

Carstairs, Bell v. 68, 177.

Church, Vandenheuvel v. 116, 140.

Coit, Alsop v. 58, 127.

Commercial Ins. Co., Alsop v. 161.

Cooper, Hull v. 199.

Corneal, Jefferson Ins. Co. v. 190.

Crawford, Murgatroyd v. 197.

D.

De Hahn v. Hartley, 101.

Dennistoun v. Lillie, 58,76,88, 92, 121.

Driscol v. Bovil, 227.

v. Passmore, 225.

Durell v. Bederley, 184.

Dall, Higginson v. 220.

Dubois, Von Tungeln v. 223.

Delafield, Livingston v. 192, 197.

Delafield, Suckley v. 126.

Delafield, Williams v. 203.

Dixon, Littledale v. 161, 187, 196.

, Peisch v. 219.

Ducket, Wilson v. 181.

Dunlop, Stewart v. 207.

E.

Edwards v. Footner, 70,119.

Elden v. Parkinson, 87.

Elting v. Scott, 178.

Ernes, Weston v. 132.

Essex Ins. Co., Andrews v. 104.

F.

Feise v. Parkinson, 119,137, 177.

Fillis v. Brutton, 114.

Fiske v. New-England Ins. Co., 192.

Fitzherbert v. Mather, 92,204.

Flinn v. Headlam, 72, 113, 137,139, 183.

v. Tobin, 112,137, 139.

Forrester v. Pigou, 66, 177.

Francis v. Ocean Ins. Co., 101.

Freeland v. Glover, 158.

Friere v. Woodhouse, 161.

Featherstone, Brine v. 66, 150, 168.

Fire Ins. Co., Walden v. 63.

Fletcher, Bize v. 59, 130, 144.

—! , Barber v. 176.

, Planche v. 170.

Footner, Edwards v. 70, 119.

Fraser, Macdowall v. 116.

O.

Gen. Int. Ins. Co. v. Ruggles, 209.

Gladstone v. King, 208.

Goix v. Low, 101.

Gen. Int. Ins. Co., Parks v. 173.

, Ruggles v. 205.

Glover, Freeland v. 158.

, Hubbard v. 165.

, Willis v. 196.

Gurney, Tyson v. 87.

H.

Haywood v. Rogers, 183, 187.

Hazard v. N. Eng. Ins. Co., 128.

Higginson v. Dall, 220.

Himely v. South Carolina Ins. Co., 179.

Hodgson v. Richardson, 102, 199.

Horneyer v. Lushington, 222.

Hubbard v. Glover, 165.

Hull v. Cooper, 199.

Hartley, De Hahn v. 101.

Harvey, Reid v. 102.

Haven, Whitney v. 193.

Headlam, Flinn v. 72, 113, 137, 139, 183.

Henderson, Lothian v. 105,220.

Hill, Sibbald v. 71, 157, 182.

J.

Jefferson Ins. Co. v. Cotheal, 190.
Johnson, Saloucci v. 87.

K.

Kemble v. Bowne, 76, 125,157, 193:
Kenyon v. Berthon, 101.
Kirby v. Smith, 158.
Kettlewell, Nonnenv. 221.

[graphic]
[graphic]
[graphic]
[graphic]

King, Gladstone v. 208.

L.

Lethulier's Case, 138.

Littledale v. Dixon, 161, 187, 196.

Livingston v. Delafield, 192, 197.

and Gilchrist v. Maryland

Ins. Co., 161.

v. Maryland Ins. Co., 57,197.

Lothian v. Henderson, 105, 220.

Lacy, Steel v. 119.

Lillie, Dennistoun v. 58,76, 88, 92, 121.

Loughman, Berthonv. 185.

Low, Goix v. 101.

Lowdon, Redman v. 156.

Lushington, Hornejer v. 222.

Macdowall v. Fraser, 116.

Marsden v. Reid, 177.

Marshall v. Union Ins. Co., 197.

Maryland Ins. Co. v. Rudens, 197.

Middlewoodr. Blake, 172.

M'Lanahanv.Universal Ins.Ce., 190,198.

Murgatroyd v. Craw ford, 197.

Murray v. Alsop, 124.

v.Unit. Ins. Co., 101.

Majoribanks, Robertson v. 179.

Martineau, Court v. 160.

Maryland Ins. Co., Allegro's Adminis-

trators v. 151, 166. , Livingston v. 57,197.

, Livingston and Gil-

christ v. 161.

Mather, Fitzherbert v. 92, 204.

Mechanics' Mut. Ins. Co., Alston T. 120,

Morison, Stewart v. 103. [139.

Murdock, Rickards v. 183,187.

N.

New-York Firemen's Ins. Co. v.Walden,

Nonnenv. Kettlewell, 221. [195.

New-England Ins. Co., Baxter v. 104.

— , Fiske v. 192.

, Hazard v. 60,128.

, Rice v. 103,150.

O.

Ocean Ins. Co., Bryant v. 151.

Francis v. 101.

Opinion of Chancellor Wal-) . ,.

worth in Alston v. The APPen9d'*'

Mech. Unit. Ins. Co. ) ie)-

P.

Parks v. Gen. Int. Ins. Co., 173.

Pa wson v.Watson, 121,129,152,175,214.

Peisch v.Dixon, 219.

Planche v. Fletcher, 170.

Parkinson, Elden v. 87.

Feisev. 119,137, 177.

Passmore, Driscol v. 225.

Phcen. Ins. Co., Barker v. 101.

Pigou, Forrester v. 66, 177.

Pitcher, Anderson v. 138.

R.

Ratcliffe v. Shoolbred, 157.

Redman v. Lowdon, 156.

Reid v. Harvey, 102.

Rice v. New-England Ins. Co., 103, 150.

Rickards v. Murdock, 183,187.

Robertson v. Majoribanks, 179.

Ruggles v. Gen. Int. Ins. Co., 205.

Reid, Marsden v. 177.

Richardson, Hodgson v. 102, 199.

Rickards, Campbell v. 189.

Rogers, Haywood v. 183,187.

Ruden's, Maryland Ins. Co. v. 197.

Ruggles, Gen. Int. Ins. Co. v. 209.

S.

Soloucci v. Johnson, 87.

Shirley v. Wilkinson, 196.

Sibbaldv. Hill, 71,157,182.

Spitta v. Woodman, 222.

Stackpole v. Simon, 177.

Steel v. Lacy, 119.

Stewart v. Morison, 103.

v. Dunlop, 207.

Suckley v. Delafield, 126.

Scott, Elting v. 178.

Shoolbred, Ratcliffe v. 157.

Simon, Stackpoole v. 177.

Smith, Clason v. 215.

Kirbyv. 158.

Vandervoort v. 109.

South Carolina Ins. Co., Himely v. 179.

Stupart, Bean v. 101.

T.

Thomson v. Buchanan, 103.

Tidmarsh v. Wash. F. and M. Ins. Co.,

Tyson v. Gumey, 87. [91,203

Thornburgh, Wittingham v. 181.

Tobin, FUnn v. 112,137, 139.

U.

Union Ins. Co., Astor v. 218.

Marshall v. 197.

United Ins. Co., Murray v. 101.

Vandenheuvel v. 115.

Universal Ins. Co., M'Lanahan v. 190,

198.

V.

Vandenheuvel v. Church, 116, 140.

v. The United Ins. Co.,

Vandervoort v. Smith, 109. [115.

Von Tongeln v. Debois, 223.
Vaughan, Bowden v. 58,118,165.
W.

Walden v. Fire Ins. Co., 63.

Weir v. Aberdeen, 174.

Weston v. Eroes, 132.

Whitney v. Haven, 193.

Wilson v. Ducket, 181.

Willes v. Glover, 196.

Williams v. Delafield, 203.

Wittingham v. Thornburgh, 181.

Walden, New-York Firemen's Ins. Co. v.

Walton, Chapman v. 187. [195.

Wash. F. and M. Ins. Co., Tidmarsh v.

91, 203.

Watson, Pawson v. 121, 129, 152, 175,

Woodhouse, Friere v. 161. [218.

Woodman, Spitta v. 222.

Wilkinson, Shirley v. 196.

INTRODUCTORY LECTURE.

Marine Insurance, (the subject to which these Lectures will be exclusively devoted,) is, in few words, a contract of indemnity against the perils of the sea. The party stipulating the indemnity, called the insurer or underwriter, agrees, in consideration of the payment of a certain sum, called a premium, to make good to the party assured, all losses, not exceeding a specified amount, that may happen to the subject insured, during a certain voyage, or period of time, from certain acts or events, denominated perils, enumerated or implied in the contract. The instrument containing the contract is termed a policy. The origin and meaning of the term I shall hereafter explain.

The law of insurance is not to be regarded merely as a branch or division of municipal law. It boasts a nobler origin, and claims a wider domain. It is the common language of the French jurists that marine insurance is not the creature of positive and arbitrary law; but, in its essential principles and its leading maxims, a component part of the law of nations,—meaning by the law of nations,(a) not that which defines the rights and duties of nations in their mutual intercourse, but that which is of universal, permanent and paramount obligation, and which not only every nation as such, but each individual of the human race, is bound to obey—the eternal law of truth and justice. In this sense, which is borrowed from the Roman jurists, the law of nations is strictly synonymous with the moral law, or as some modern writers have chosen to term it, the law of nature.

This explanation of the true character of marine insurance, applies, in a greater or less degree, to other branches of commercial law, and to justify its propriety it is not at all necessary to rely upon foreign authority. The most eminent writers on commercial law, both in England and in the United States, have held substantially the same language, and the doctrine which it implies is sanctioned not only in the reasoning of our judges, but by the decisions of our courts. Nor is this doctrine of recent origin. It is stated by the illustrious commentator on the laws of England in these significant terms :—" The law of nations, "(whenever any question arises which is the pro"per subject of its jurisdiction,) is adopted in its "full extent by the common law, and is held to "be a part of the law of the land. Thus in mer"cantile questions, such as bills of exchange and "the like—in all marine causes relating to freight, "average, demurrage, insurances, bottomry, and

(a) Pothier Traite des Assurances, n. 9. Emerigon, ch. 1. sec. 6.

« PreviousContinue »