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 . / Thesis (LL.D.)-University of Natal, Durban, 1996.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ukzn/oai:http://researchspace.ukzn.ac.za:10413/9539 |
| Date | January 1996 |
| Creators | Marnewick, Christiaan Georg. |
| Contributors | Staniland, Hilton. |
| Source Sets | South African National ETD Portal |
| Language | en_ZA |
| Detected Language | English |
| Type | Thesis |
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