of marine insurance is not an instrumentality of commerce, but a mere incident of commercial intercourse.' The force of this claim of unconstitutionality must be fully recognized, and it has been the great stumbling-block in the way of federal supervision ever since agitation for that measure began in 1868. It cannot be removed except through a test case or by amendment of the Constitution. Until some action is taken by Congress, or until a suit is brought by a state against a foreign company refusing to be regulated, there will continue to be those on the one hand who maintain that the "insurance cases" are conclusive against national supervision; and, on the other hand, those who hold that none of these cases involved the constitutionality of a federal law, but were merely concerned with state laws; that the cases are to be regarded as mere dictum and do not justify a negative policy; that constitutional objections have been raised against most of the country's greatest legislative measures; that the Constitution is a growth to meet the needs of the time; that the Supreme Court has frequently reversed its rulings; and that if Congress should act by passing a law, and the whole matter be squarely brought before the Supreme Court for decision on its real merits, the necessity of the situation would warrant a hope for a favorable decision. Again, it is argued, that there are recent cases to show that the Supreme Court has already retracted in large measure from its earlier position on this question. Chief reliance is placed on the lottery case of February, 1903, where it was decided by a vote of five to four that a lottery ticket is an article of commerce. This decision, it is argued, greatly weakened the force of "the insurance cases." Indeed, the four dissenting judges-Justices Fuller, Brewer, Shiras, and Peckham-did find a sufficient similarity between a lottery ticket and a policy of insurance to hold the majority opinion at variance with the "insurance cases," and their dissenting opinion contained these significant words: "Is the carriage of lottery tickets from one state to another commercial intercourse? The lottery ticket purports to create contractual relations, and to furnish the means of enforcing a contract right. This is true of insurance policies, and both are contingent in their nature. Yet this court has held that the issuing of fire, marine, and life insurance policies in one state, and sending them to another, to be there delivered to the insured on payment of premium is not interstate commerce." In answer to this dissenting opinion the opponents of federal supervision argue that the definition of a lottery ticket by the court differs essentially from that of a policy, the first being defined as a subject of traffic, something that could be bought and sold, while policies of insurance were considered in Paul vs. Virginia as not "subjects of sale and barter, offered in the market as something having an exist ence and value independent of the parties in them." CHAPTER XXII THE DEVELOPMENT OF MARINE INSURANCE MARINE insurance is far more technical and complex than any other system of indemnity. Fire insurance provides against loss occasioned by a single occurrence. Life insurance insures against an event, the occurrence of which is inevitable, and the risk concerning which has been approximately measured by the application of the law of average to accumulated data. Marine insurance, however, undertakes to indemnify a person against the loss of ship, goods, freight, anticipated profits, or any other insurable interest, through any of the numerous perils and adventures connected with navigation, such as the "perils of the sea," fire, collision, pirates, thieves, seizures, and restraints, jettison, barratry of the master or mariners, and all other perils, losses, or misfortunes which may be assumed by the policy. While determined efforts have been made for years, and with success, to place life and fire insurance upon a scientific basis, this can be said of marine underwriting to only a limited degree. Some of our leading marine companies do possess a great mass of experience which is used as a basis in computing rates. Yet, taking the business as a whole, there is no other branch of insurance in which success is so largely dependent upon the native sagacity, the keenness for observation, and the general specialized ability of the individual underwriter to know not only men, but the effect of climate, seasons, geographical localities, and numerous other considerations upon any of a large number of risks, as in marine insurance. To a very large extent the business is |