The Sun.
London, England, 1828-01-09 00:00:00

ON ENGLISH INSURANCES.

Many complaints have been made in latter years on
the insufficiency of Insurances effected according to Eng-
lish laws. From many quarters the attention had been
directed towards it, that according to English laws (or de-
cisions of the Courts), the. assured has not-only to'answer
for his faults, or those of his correspondent, but also the
faults and errors of the master, the crew, the pilot, the
ship, and the owner ; nay, even those of his Government,
in case the same should declare war against England
(British capture). The writer has already, as far back as
the year 1818, published his observations on the subject in
the Borsen Halle, and the sth volume of that excellent
work, " Beneke on Marine Insurance," has contributed
many new instances in point, as Bell v. Tanson, page SO,
Spitta v. Woodman, page 78, and others ; the following,
however, which the writer had fallen in with in one of the
most recent English journals, surpasses all the preceding
known cases in suppnrt of the argument, as in that case
even the deficiency of the Police of the Country* falls on
the shoulders of the assured. I will explain :—lt is gene-
rally known, that in every country there exists a regula-
tion that masters, as well as mates, cannot be placed in
their respective situation until they have given proof of
their having stood their official examination; only in Eng-
land it is left to the owners to give the command of their
ships to whom they consider competent (See Abbot on
Shipping, page 102, and JaWbsen's Maritime Right, page
165,) and from their want of a public institution, an in-
nocent individual is to suffer in its most distant conse-
quences by a loss of 2000/. ! The writer considers the
narration of this case, in a journal of extensive circulation,
of service to his fellow-citizens, and the German commer-
cial public at huge. It is that of Clifford v. Hunter, and
had been tried in the Court of King's Bench on the 17th
October last.

A cargo of sugar had been insured for 20001. from the
Mauritius to London; the ship, which left the Mauritius
in perfect condition, was scarcely sixty miles distant from
the land, when the captain, who went ill on board, consi-
dered his state of health so much impaired, that he had
the mate called, and stated the question to him, whether in
case of his (the captain's) death he considered himself capa-
ble to take the command of the ship? the mate, being
afraid, declined, alleging incompetency, upon which the
captain resolved to return to the Mauritius. On the follow-
ing night a heavy gale arose, the ship sprung a strong leak,
which the crew in vain tried to stop by pumping, several
cables were obliged to be cut, and part of the cargo thrown
overboard. In the morning they came in sight of the Isle
of France, and made signals of distress to obtain a pilot.
As, however, the pilot refused to undertake the manage-
ment of the vessel, the captain resolved to put her on shore,
where soon afterwards she became a wreck. The assured
claimed the total loss from the underwriter, who refused,
and the matter was left to the decision of the law. The
personal evidence of the captain' (who had since recovered)
was called by both parties, which was to the following
effect :—The crew consisted, when he departed, of thir-
teen men, his vessel was in perfect condition, she had been
properly surveyed and declared sound ; it was often the
case that a plank got loose in the soundest vessel, without
the cause being discoveled. And on being cross-examined
by the Attorney-General, who was for the underwriter,
he answered, he thought it was essential that there should
be
,a person besides the captain on board of every ship,
competent, in case of need, to navigate the vessel. On this
evidence the Attorney-General grounded his defence for
exonerating the underwriter, " The vessel (he said) had
not been sea-worthy, and the destination being London,
her return to the Mauritius must be considered a deviation
from her voyage, which, if not occasioned by the dangers
of the sea, but, as in this case, by the incompetency of the
ship, makes the assurance void." The Lord Chief Justice,
Lord Tenterden, gave his opinion to the following effect :
That the decision hinged entirely upon the question " whe-
ther the vessel, with only one able person on board to na-
vigate her, was in a competent state to sail ?" This alone
is to be left to the Jury. According to his opinion, a ves-
sel without a competent arew could not be considered sea-
worthy, and if the Jury thought that the ship in question
ought to have been better manned, they must give their
verdict for the underwriter. The Jury, in consequence,
gave their verdict in favour of the underwriter.
If we consider now, that it was not the assured of the
ship, but of the cargo who was defeated, the question na-
turally follows :—Where has the innocent sufferer who
owned the cargo, and who is many thousand miles distant
from the port of loading, to have his redress ; upon whom
can he come for his loss? Upon his agent at the Mauri-
tius? The same would easily excuse himself, with the
impossibility of discovering the alleged incompetency, be-
cause as no official examination is wanted (which also ap-
peared from the trial), the " incompetencies" are not
visible. Nor can he come upon the mate, for independent
of his limited means, he had not even been in fault—the
misfortune had not occurred by his ignorance or error, but
by the captain's untimely and unnecessary dread of death.
Is the proprietor of the cargo to address himself to the cap-
tain or owners ? It is well known that these arc only
answerable for all demands arising from culpa or delicta
(guilt or fault), as far as the value of the ship and freight,
consequently, in this instance, restitution is out of the ques-
tion, they being liberated by the loss of the ship. Where
has an assured now to hold himself but to his adverse fate
to be insured in England? But let this case not be consi-
dered as a juridical curiosity, which like all variations, does
not prove any thing against the rule or the matter. No,
it is rather the absolute consequence of a whole system—a
system which deviates materially from our views and doc-
trines of Marine Insurances. If we submit the contract of
assurances merely to good faith, to the communication of
all what the parties know, it is bound in England to the
exercise of all those persons interested not only in the mat-
ter insured themselves, but also in the means of conveyance,
not only before the contract, but also after it, consequently
dependent on objects not within the reach of the assured.
It is therefore not to be wondered at, that an English
Crown-lawyer, an English Lord Chief Justice, and an Eng-
lish Jury, give their aid in favour of such extraordinary
objections—objections which would hardly be broached in
any other country by an underwriter, nor defended by an
advocate. _ _

With such laws, it tends even to the honour of the under-
writers that they do not throw more causes into Court—.
that they even often settle losses which, according to their
rigid law, they might dispute. But is it not better and
safer to confide to justice than to generosity ? Or is there
any security at all, if dependent on the arbitrary will of
strangers ? And still security is the basis of the contract
of insurance ; but security does not allow of any limitation';
every breach, every exception, contradicts its end, and
destroys it. An insecure security is a fallacy or a paradox.
What good does it to the assured, if, after having ransomed
himself against nine dangers, he falls a sacrifice to the
tenth? The more you obtain by a contract the more ad-
vantageous it is ; therefore suds insurance is rather to be
called cheap which guards against the most risks, than the
one which usage of language and prejudice only calls'so.
Which pays the smallest premium ?
Dec. 1827. • (Signed) M. J. HALLER.
Internal regulations would, perhaps, be a better term ;
the German is Landes-Policey.

DIED.—In August last, at the Island of
Madagascar, whither he was sent on a special mission,
Lieut. H. COLE of the Royal Staff Corps, Aide-de-Camp
to Lieut.-Gen. the Hon. Sir G. L. COLE, Governor and
Commander-in-Chief of the Mauritius, and nephew to
Lieut.-Gen. Sir Wst. COCKBURN, Bart. In this most
excellent young man were united the finest talents of the
soldier to the most amiable and exalted qualities of the gen-
tleman and tke Christian, which made him universliy re-
spected and beloved while living, and his death lamented
by all who knew him.
The Second Number of Mr. BUCKINGHAM'S
New Literary and Critical Journal, " The Athenceum," is
published this day, and contains, among other interesting
articles-1. Mr. Thomas Campbell and Mr. Theodore
Hook.-2. The Actors and Actresses of the present day
—3. Second Exposure of the false criticism in the Quar-
terly Review-4. Public Buildings of the Metropolis--5.
Memoirs of the Life of Dr. Samuel Parr--6. Posthumous
Papers ; the Humourom; Man ; the Awkward Man-7.
Hammer's History of the Turks-8. The present state of
Hayti-9. Nouvellettes ; Memoirs of a Gnostic-10. State
of Spanish Literature from the Invasion of Napoleon-11.
Haydon's Picture of the Mock Election-12. The Drama,
Poetry, Literary Intelligence, &c. &e.—This New Weekly
Journal is regularly Published every Wednesday, by W.
LEWER, at the Office, 147, Strand, near Somerset-house,
price'sd. ; or Stamped for Country Circulation, by Post,
price ls. ; and those who may desire to possess Complete Sets,
are advised to send their orders forthwith to their respec-
tive Booksellers or Newsmen. •