Consuetudo, vel lex mercatoria, or The ancient law-merchant Diuided into three parts: according to the essentiall parts of trafficke. Necessarie for all statesmen, iudges, magistrates, temporall and ciuile lawyers, mint-men, merchants, marriners, and all others negotiating in all places of the world. By Gerard Malynes merchant.

An abridgement of Questions of Assurances.

1 WHether an assurance made vpon a Ship named, is to be vnderstood of the ship or of the goods laden there∣in, or vpon both?

Answere, When the name of the ship is expressed according to the said policie of Assurance made vpon the very Keele of the ship of such a burthen, there is no man endued with reason, that will attri∣bute this Assurance to extend to the goods laden in the same, much lesse to both, when the Ship is onely named and no goods at all.

2 Whether an Assurance made vpon one thousand Hides, laden in such a ship, from such a place, to such a place be good, without na∣ming the seuerall sorts of Hides laden therein?

A. In all policies of Assurances the words runne Generall vpon the principall wares, and all other commodities or goods laden, or to be laden by such a man, for the account of him or any other; and so this (Generall) includeth all particular things, which when assurance is made vpon them are named and specified, as heereafter is also declared.

3 Whether vpon vncertaine things to bee laden, the assurance bee good?

A. When assurances are made vpon goods laden, or to bee laden, as aforesaid; the said assurance must needes bee of validitie, for the word Goods and Merchandises comprehendeth all vncertaine things vendible: and if it were some particular thing, it is alwayes ex∣pressed.

4 Whether an assurance made vpon one Sacke of Wooll bee good, when there is many Sackes of Woolles in the same Ship?

A. The question is preuented by the Custome of Assurances, which is, that an assurance made vpon any particular goods, must bee declared by the particular marke of the goods belonging to such an owner, or any other; and if there be more of the said marke, the num∣ber therefore is added: and if the number were alike, the weight may distinguish the same; whereby the one Sack being throwne ouer boord for safegard of the ship and goods, may bee cast into a contri∣bution; or being taken by Pirats, the assurors are to pay for it: so this question is friuolous, as many other are, and breedeth but contenti∣on to imbibe Merchants braines with them.

5 The like is when the assurance is made vpon commodities or goods without name, or not naming the number, weight, or measure, but expressing the marke of all goods laden or to bee laden, as aforesaid.

6 Whether the assuror is to haue his Premio or Salarie, vpon a conditionall assurance, or not?

A. There is no conditionall assurance made, but with exception of some aduentures not to bee borne by the assuror; which are not comprized in the policie of assurance, and therefore the Premio is due to the assuror.

7 Whether an assurance made is to bee vnderstood of the first voyage which the ship doth make after the assurance is made, and the ship appointed for lading?

A. This is to be vnderstood alwayes of the first voyage, vnlesse there were a declaration of a second voyage in the policie of assu∣rance, and therefore I haue noted a caueat for assurors to bee carefull how they cause other men to assure for them in remote places, not to make them lyable to two voyages for one assurance, nor to be subiect to a second voyage when the first is performed, but to be vigilant in their actions.

8 Whether an assurance made for the tempest of the Seas, bee also to be vnderstood for Theeues or Robbers vpon the Seas?

A. The generall and ordinarie policie of assurance, containing all aduentures, sheweth, that the assuror is to beare the aduenture of both these; and if it were otherwise in particular, it must bee decla∣red: So that this distinction is vaine.

9 The like may be said to the question, Whether an assurance made by stipulation, be a contract or not? or whether it be couentio∣nall or conditionall? wherein this distinction is of no moment.

10 Whether an assuror (hauing payed the Merchant for goods

lost by him assured, may afterwards, if the goods were found againe or recouered) restore the goods to the Merchant, and call for his mo∣ney (which he paied) backe againe?

A. It appeareth plainely by all policies of Assurance, That the Assuror doth condescend that the Merchant shall haue full power and authoritie by himselfe or his Factors and Seruants, to sue for there∣couerie of the goods, and that the Assurors shall contribute to the charges pro rata of their summes by them assured respectiuely: but the Merchant is not therefore hindered to recouer the money of the Assurors, neither can one particular Assuror haue all the goods; for the Merchant relinquishing the goods to the Assuror, reserueth al∣waies his part therein which he hath not assured, which he detaineth in nature of an Assuror, so that the Assuror hath not conuenient meanes to performe the contents of the question; neuerthelesse, if the Merchant will, hee may buy the goods so recouered of the As∣surors, as they can agree; but then is the question altered, and not the same.

11 Whether an Assuror is to answere any hurt or damage done to the goods by Mice, Rats, or any other vermine, especially moaths?

A. By the policie of Assurance that Assuror is to answere for all damages, detriment, or hurt which shall happen to the goods after his vnderwriting: but if he can proue the hurt or damage was before done in the ware-house or other place, he is not bound to answere the same.

12 Whether goods lost in the ship boat, being vnladen out of the ship, or being to be laden into the ship, shall be answered by the As∣surors, or what may be laied to the charge of the Assurors by con∣tribution?

A. This question consisteth of two points: the answere to the first is plaine, according to the policies of Assurances, where it is specifi∣ed, that the aduenture shall begin vpon the goods laden in any Boat, Vessell, or Crayer to be laied aboard of such a Ship, or being dischar∣ged out of the Ship, the aduenture to continue till the goods be safe∣ly landed: but to the second, the answere is not so plaine, because it dependeth vpon the sea-law, and must be considered accordingly. For as we haue noted in the chapter of Contributions, if by occasion of lightening, the goods which are put into the Boat or Lighter perish, the ship and remaining goods in the ship shall answere for the same: but on the contrarie, if the ship and remaining goods perish after the Boat or Lighter is once safe, no contribution shall be on the goods in the Lighter; for the law is, That the goods shall onely be lyable to contributions, when ship and goods are safely arriued to their inten∣ded port of discharge: according to this rule is the Assuror to answer for contributions pro rata of the summe by him assured.

13 Whether assurance made for pirats, is to be vnderstood also for theeues which by night steale the goods from the ship?

A. The answere is so euident, that both the one and the other is

comprised in the Assurance, as there needeth no other explanation.

14 Whether an Assurance made at one time vpon goods to be bought and intended to be laden, and afterwards found not to be bought at the same time, but at another time, doth bind the Assurors to pay the losse?

A. This question is worthie the consideration, and doth meerely consist in the obseruation of time, & not in the buying of the goods, although it be so propounded; for the time maketh great difference in the assurance, as I haue noted before. Goods laden in the Summer are not in aduenture comparable to the Winter when stormes and tempests do arise, and therefore are not the Assurors to be made an∣swerable to this assurance; for the custome herein is cleere and con∣curring with the Law of Oleron, and therefore not comprised in the tenor of the policies of Assurances, which is the cause also that Assu∣rors are to haue a speciall regard to the Masters of ships whether they be vicious or diligent: for the loue of women and wine maketh them to loose the oportunitie of time; so that by contrarie windes their voyage is retarded, and which was to be made in Summer fal∣leth out to bee in Winter, subiect to eminent daungers and losses, whereunto the Assurors become liable, as is declared, whether it be by accident, misfortune, casualtie, rare successes and negligences of Masters and Mariners vnlooked for and happening in strange manner sodenly.

15 Whether an Assuror be liable to the aduenture of goods ship∣ped from one ship into another?

A. Sometimes in policies of Assurances it happeneth that vpon some especiall consideration, this clause forbidding the transferring of goods is inserted, because in time of hostilitie or warres betweene princes, it might fall out to be vnladen in such ships of those conten∣ding princes, whereby the aduenture would be farre greater. But according to the vsuall Assurances which are made generally with∣out any exception, the Assuror is liable thereunto: for it is vnder∣stood, that the Master of a ship without some good and accidentall cause, would not put the goods from one ship into another, but would deliuer them (according to the charterpartie) at the appointed place, which is the cause that (when assurance is made vpon some particular goods laden in such a ship, vnder such a marke) the Policie maketh mention of the goods laden to be transported and deliuered to such a place by the ship, or by any other ship or vessell vntill they bee safely landed, so that in all these and the like the condition maketh the law.

16 Now there is a question, Whether an Assuror is answereable to the assurance of goods to beare the aduenture if no goods were la∣den, or but part of the goods?

A. If a man do bind or oblige a thing to be found in such a place, and it is not found there; euerie man knoweth that the said thing tied to a locall place cannot be bound thereby, because it is a bodie

named without substance, and not in Rerum natura, and there would be vnderstood a priuation without being, and where there is not ma∣teria & forma, first, there can be no priuation: but if part of the goods were laden, then the Assurors are liable for so much as that part of goods did cost or amount vnto: albeit that in this (as I haue touched before) custome is preferred aboue law; for the ciuile law (if there be many Assurors in a ship vpon the goods laden therein) maketh all the Assurors liable pro rata, as they haue assured according to the said part of goods laden, if a losse do happen: or if there be cause to restore the Premio or sallarie of assurance in part. But the custome of Assu∣rances doth impose the losse vpon those Assurors which did first vn∣derwrite, and the later vnderwriters of the Assurors do not beare any part of the losse, but must make restitution of the Premio, and reserue onely one halfe vpon the hundreth pounds, or 10 ss for their vnder∣writing in the policie of Assurance, as is obserued. The Ciuillians therefore haue noted, That in Assurances the customes of the sea∣lawes, and vse amongst Merchants is chiefely to be regarded and ob∣serued.

In like manner, if a ship bound for a certaine port (being at sea) be driuen backe to the same from whence it departed, and by tempest be cast away, the Assurors are to aunswere the damage of the goods laden therein, for so much as they did assure, as they do in other casu∣alties. Assurors therefore are rightly exempted by the Diuines and Canonists to be no manner of waies vsurors, taking a benefit by con∣tract &c.

The matter of losse being well examined and made plaine, the Commissioners then with a mature deliberation do set downe their determination and sentence, That the Assurors shall pay euerie one the mony by him assured; and if thereupon any one do denie to make payment accordingly, then (vpon certificate to the Lord Maior of London, and some of the said Commissioners made of his refusall) they haue by act of Parliament (as aforesaid) authoritie to commit the said Assuror to prison, there to remaine vntill he doe pay or satisfie the said sentence or finall decree, which no man of any credit will incurre. And thus is this laudable custome established in Eng∣land: and beyond the seas they are compelled by the Magistrates to performe the like ordinances or sentences pronounced in the like ca∣ses of Assurances. ({inverted ⁂})

Notes

• Custome to be aboue law in this particular