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in money, though they are men; for the application of the Roman jurisprudence, which has been made to them, has not gone so far as to refuse them this quality. The ordinance, in prohibiting in general any insurance on the lives of men, appears either to have presumed that negroes were not men, or to have authorized insurance on their lives. The language of the project now under consideration removes all ambiguity.
Article 348. may also, gentlemen, engage your attention. It is there declared, that any concealment, any misrepresentation on the part of the insured, any variation between the contract of insurance and the bill of lading, which would lessen the opinion of the risk, or change the subject of it, annuls the insurance.
The insurance is void even in the case where the concealment, the misrepresentation, or the variation, would not have had any influence on the damage or the loss of the subject insured.
Although this article is new, it is less an addition to the ordinance than a consequence of the principles which it had sanctioned. Experience has, however, proved that this article, particularly the provision in the second paragraph, may prevent specious objections, which have sometimes been raised in the tribunals of commerce.
The insurer has a right to be acquainted with the extent of the risk offered to him: to withhold from him any circumstance which might change the subject of this risk, or lessen his opinion of it, would be to make him bear hazards which he would not, perhaps, be willing to undertake, or which he would not undertake except on different couditions: it would be, in a word, to deceive him.
Hence, reciprocal consent, which alone can create a contract, would be found wanting. The consent of the insured would be directed towards one object, and that of the insurer towards another, the two intentions tending in a divergent sense, would never meet: and yet, it is only the union of these intentions which can constitute a contract.
The second part of the provision necessarily flows from these principles.
The contract not having existed, no consequence, no effect, can
result from it. Hence it is a matter of indifference in regard to the insurer, whether the ship be lost or not; or that she be lost by a peril, on which the concealment or misrepresentation would have had no influence: the insurer will still be authorized to answer, that he has insured such a risk, and that this risk has not existed.
Here, gentlemen, finish the changes, or the important additions, which we have made to the ordinance: for the rest, it affords a sanction to our project, wherever it is found to agree with that law: the succeeding provisions of the project would therefore present only the subject of a barren discussion, uselessly prolonged.
We hope, gentlemen, that you will judge this important part of the commercial code worthy of your suffrages.
BOOK II. TITLES XI. XII. XIII. AND XIV.
THE COMMERCIAL CODE.
Presented to the Legislative Body, by Messrs. Maret, Bégouen, and
Corvetto, Counsellors of State.
SITTING OF EIGHTH SEPTEMBER, 1807.
GENTLEMEN, We present for your sanction the last titles of the second book of the commercial code, concerning maritime transactions.
These titles treat of averages, of jettison, and of contribution, of limitations of actions, and of exceptions to actions.
You will there recognise the spirit, and oftener the terms of the ordinance of 1681. It has become the maritime legislation of Europe; it has, consequently, in the law which we now present to you, undergone only some slight changes and additions, which experience has demanded. It is, therefore, in some degree, rather a kew arrangement of the ordinance of 1681, than a new law.
We begin by defining average in general; we afterwards distinguish and class the different sorts of average; we apply to each species the appropriate provision; finally, we lay down the exceptions, and establish the exceptions or bars, to a right of action.
This order, indicated by the analysis of the ideas, has appeared to us to replace advantageously that of the ordinance, where the first and second articles are definitions, the third article declares, the fourth, fifth, and sixth, contain definitions, which render the order of the seventh title confused and embarrassing.
Thus, as we have already observed, some changes, and some additions, have appeared to us necessary to be made in the ordinance.
That provision of the sixth article, the expenses of unlading in order to enter a harbour or a river, are the subject of gross or general average, has appeared to us to require an addition, We have examined whether there was gross or general average in every case, as well in that of the fear of shipwreck or of capture, as in that where the ship, arrived in the roadsted of the port of her destination, cannot enter the harbour, port, or river, without discharging her cargo, according to custom, in lighters. We are also persuaded that the ordinance left an uncertainty which it was necessary to remove; and the law pow presented to you declares, that these expenses are the subject of general ave rage only, when the ship is forced to enter by stress of weather, or the pursuit of an enemy. The reason of which is, that, in this case, it concerns the common safety of the ship and the cargo; whilst, in the other, the expenses regard only those to whom the goods which are laden on board the lighters belong.
The eighth article of the ordinance declares, that the loadmanage, towage, pilotage for entering harbours, or rivers, or for going out, are the subject of petty average. The law has said, that load-manage, tovage, pilotage, &c. are not the subject of average, but simple expenses at the charge of the ship. (Art. 406.)
The reasons are, that it is evident, from the nature of things, that these charges are only the expenses of navigation, which might have been foreseen and calculated beforehand, and which, consequently, cannot be the subject of average; that if there be any question of extraordinary expenses, they are anticipated by No. 7. of article 400.; if of ordinary expenses, it is more simple to make them enter into the consideration of the freight; for there is their place; moreover, in making this regulation, the law only confirms what has been established by usage; and in effect, no account is ever made of similar charges; but in the bill of lading a fixed sum is agreed upon with the captain.
We pass on to article 407. of the law, which declares by whom the damage is to be paid in case of running foul. The ordinance had provided only for two cases, (articles 10. and 11.) the ope, when the running foul was occasioned by the fault of one of
the captains ; the other, when there is a doubt as to the cause of it. There is a third, when the running foul is the effect of hazard, which cannot be imputed either to intention, want of skill, or negligence of any person ; then it is an accident by which some person may suffer, but for which no one ought to be answerable. The law, in consequence, adds to the provisions of the ordinance, that, in case of the running foul of ships, if the occurrence was purely accidental, the damage is borne, without remedy, by the ship which has suffered.
After having defined average in general, classed the different sorts of average, applied to each species the appropriate provision, and laid down the exceptions, we have arrived at this question: shall a demand for average be always admissible? We have considered that the demand ought not to be admitted, when, in order to enjoy its effect, it would be necessary to expend in charges as much or more than the damage which would be obtained, because then there was no interest for any body either to demand or to defend. However, we establish this principle only in the cases where the silence of the parties would not have made known their intentions.
Such are the motives which have determined some changes and additions to the title of averages in the ordinance. The law which we now offer, makes no essential alteration in the title of jettison and of contribution, and in that of exceptions to actions. With regard to that of limitations of actions, we have distinguished the act of abandonment from the action at law arising op a contract of bottomry or a policy of insurance.
The act of abandonment is limited to the term of six months, counting from the day the news of the loss is received, according to article 373. the motives of which one of the orators who has preceded us at this tribune has made known to you.
With respect to the action at law arising on a contract of bottomry and a policy of insurance, it is limited to five years, counting from the date of the contract. The interests of commerce demanded this change in the 48th article of the ordinance, the execution of which has been attended with a great many lawsuits, because it established a great variety of limitations.