The UK’s Marine Insurance Act 1906 was passed following a 12-year gestation period during which Sir Mackenzie Chalmers, the great codifier of the common law, analysed and extracted from 150 years of judicial authority a set of principles which was designed to reflect the law as it stood in 1906. The measure is now enshrined, for the most part in unamended form, in the law of most common law jurisdictions, with Australia following suit by the Marine Insurance Act 1909 (Cth). The 1906 Act was in part redundant by the time it was passed, and much of the remainder of it has been overtaken by many hundreds of judicial decisions, market practice and standard terms of contracting. Many of the solutions to modern issues are despite the measure and not because of it. Australia has had two opportunities to put the 1909 Act out if its misery. First, the Australian Law Reform Committee's Report No 20 (1982) shied away from extending its suggested overhaul to marine insurance, and the Insurance Contracts Act 1984 (Cth) duly excluded maritime contracts. Secondly, the Australian Law Reform Committee had a second look at insurance in 2001, this time specifically at marine insurance, but its Report No 91 was somewhat tame in its recommendations and only minor changes to the 1909 Act were effected.
This presentation will suggest that it is time to administer the coup de grace (dictionary definition – "to end the suffering of a wounded creature")and to bring marine insurance law into line with non-marine insurance law in Australia. It is intended to demonstrate that the remaining differences between the two forms of insurance are illusory rather than real. After 100 or so years, even the best of Chalmers show their age.