Lloyd's Maritime and Commercial Law Quarterly
THE INSTITUTE OF MARITIME LAW
FOURTH ANNUAL LECTURE*
Marine insurance law: can the lawyers be trusted?
Donald R. O’May**
When I was honoured by the invitation to give the Fourth Annual Lecture of the Institute of Maritime Law, Professor Wilson said, with his usual magnanimity, “You can talk about anything you like”—always a rather dangerous offer. It says much for the Institute’s standards of hospitality that much later, on learning the precise title, he did not withdraw the invitation altogether. It says less for my discretion to pose the question, “Can the lawyers be trusted?”, in the presence of so many forensic friends and shipping colleagues. It was, however, a celebrated Amercian lawyer, Clarence Darrow, who said: “The only trouble with the law is the lawyers”. Could he be right?
In this age of reform in marine insurance law and documentation, it may be timely to consider the role of the lawyers, both historically and in the future. For there has been something of a revolution. I have called it elsewhere “The Quiet Revolution”, but it may be that this description is rather too self-effacing. For some weaned on the S.G. form, it has been tantamount to sending the 80-year-old Moses back up Mount Sinai humping the tablets. Radical change has taken place in marine insurance documentation within the space of no more than four years. The traditional form of Lloyd’s S.G. Policy, used throughout the world has been jettisoned. No other instrument, so widely used in international commerce, has shown such powers of survival.
Writing in 1895 William Gow said of the S.G. policy:
We have nearly 300 years of decisions and tradition bearing on one set of words, with the resultant certainty of the range and effect in English law of the words used in the customary form of the contract of marine insurance1.
Can the lawyers be trusted to interpret the new policy and clauses sensibly to achieve the commercial purposes intended? Or are we faced with decades or centuries of litigation, appeals and consequential changes in wording of clauses, as some Jeremiahs in the market and many lawyers enthusiastically predict? It is instructive to look back at the historical record. Only a very complacent lawyer would claim that the track record was wholly creditable to the lawyers.
Lord Diplock2, in 1967, referred to the need for a critical examination of how the
* The Fourth Annual Lecture of the Institute of Maritime Law of the University of Southampton was delivered on 30 October 1986 by Mr D.R. O’May.
** Senior Partner, Ince & Co., Solicitors, London, who acknowledges, with thanks, the assistance of Miss Philippa M. Kaye in preparing the paper for publication.
1 Gow, Marine Insurance (4th edn.), p. 8.
2 In his closing remarks to the Symposium on the Hull Policy at the Admiralty Law Institute of Tulane University, New Orleans: 41 Tulane L. Rev. 434 (1967).
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