Abandonment in marine insurance law : an historical comparative study.

Abstract

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 .