Abandonment in marine insurance law : an historical comparative study.
Marnewick, Christiaan Georg.
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This study follows upon an LLM thesis in which the writer submitted that South African marine insurance law should be allowed to develop by way of a codification process which co-ordinates research of the principles of Roman-Dutch law . Abandonment is defined as a special remedy available to the assured under a marine insurance policy in in special circumstances. It is related to the indemnity principle and subrogation and , operates as a method of transferring real rights. The reasons for the research are examined and the historical-comparative method is proposed as the appropriate rearch method. An historical review of the origins and early history of indemnity insurance is undertaken . It reveals that abandonment is an original institution of marine insurance which has been imported into to the legal systems of the countries of western Europe and England . After recounting the historical developments in customary and statute law pertaining to abandonment spanning the period from the birth of marine insurance to the end of the eighteenth century, the principles of abandonment currently applicable in Dutch, German, French, English and American law are analyzed and compared in order to determine what the basic rules of abandonment are. In this process certain common principles of abandonment are identified and arranged into a set of basic rules. The theoretical implications of abandonment and its relationship with the indemnity principle and subrogation are considered in order to arrive at some conclusions with regard to the origins of abandonment, its functions as a servant of the indemnity principle and its links with economic loss as a species of indemnifiable loss. It is concluded that the purpose of abandonment is to compensate for a loss which is wholly or partially economic in nature. Abandonment as a means of transferring real rights without formal delivery of the abandoned things is discussed against criticism by others that abandonment does not have the effect of transferring real rights in South African law. The development of abandonment principles in South Africa after 1652 is investigated against the background of the original customary law which applied in Europe, the local ordonnances which were promulgated in the towns of Holland between 1563 and 1744, the writings of the most important Roman-Dutch authors and developments in South African statute and case law. This allows the basic principles of abandonment in the law of the countries used for comparison and arrived at by the historical-comparative method to be compared to the principles of abandonment in the Roman-Dutch law of the seventeenth and eighteenth centuries and to current South African law. It is concluded that, whilst there are unimportant differences, the South African common law recognizes the same basic rules of abandonment as the classic Roman-Dutch law, recent Dutch law and current German, French, English and American law. In the- discussion of South African case law it is pointed out with reference to Roman- butch, English, French and Dutch authorities that an injustice has been done in the case of the 'Morning Star' . Three general recommendations are made with regard to the future development of South African law, namely that total loss should be recognized as a separate category of loss, that it is unnecessary to import the concept of a constructive total loss into South African law, and that the insurer should be allowed to decline receiving transfer of ownership of the abandoned ship or goods. The principles of abandonment are also stated on three different bases, allowing the South African legislature to choose its own model, namely: those which apply in South African law as the inherited Roman-Dutch principles; those which apply in English law, firstly as they applied prior to codification in 1906 and secondly as they now apply under the Marine Insurance Act 1906; and lastly those which the writer recommends should be taken up in a proposed South African marine insurance act . Case law is stated as at 31 December 1995. In the case of English law the wealth of material has made it necesary for the author to use his own discretion on the question whether any particular case or work was worthy of a mention .