This conference has been an extraordinary event. Extraordinary in that it is — and here I am sure I will not offend those who were part of the organisational team — the product of the vision and labours primarily of one man: Professor Marc Huybrechts. Marc has brought us together from afar, and has guided proceedings with the experience of a pilot. He has used flashing lights and has rung bells, all in the interests of getting through a formidable programme in three and a half short days. I now know why Marc’s e-mail address is @PING.be.

But the conference is extraordinary also for having brought together more than 250 kindred spirits in the field of marine insurance.

That would have been, in itself, a significant achievement in the current climate of international introspection with which this large family of maritime lawyers is at present engaged. But reflect upon the composition of the delegates to the conference, and of its panel of speakers, and the true moment of the occasion becomes apparent. There are participants from 30 countries representing China, Japan, Russia, North and South America, Africa, Scandinavia, most of Europe, and, to the extent that it still may not fit into any of the above geographical homes, the United Kingdom. There have been speakers from the UK, the United States, Switzerland, The Netherlands, France, Norway, Germany, Canada, Italy, Greece, Spain, South Africa, and of course, Belgium itself. An impressive list, and tribute in itself to the stature of our host city in the world, or should I perhaps say the family, of marine insurance.

There is, however, a far greater significance behind the mere geographical listing of delegates and speakers. For they collectively represent what are often divisively, and at times artificially, categorised as disparate jurisprudential systems: the common lawyers and the civilians. Our legal education, and perhaps more particularly the pride and prejudice of the competitive environments in which we ply our trade of marine insurance, so often leads us to the Them and Us syndrome. To have brought delegates — them and us — together in conference is an important step forward in the pursuit of international uniformity, or at least rationalisation, of marine insurance law to which many of us, and the CMI ideals, subscribe.

It is perhaps particularly significant that there has been such a meaningful participation of English lawyers (and of course, a Welshman) at a gathering in what, from the English jurisprudential perspective, must be considered as the heart of civilian European marine insurance. For the pursuit of uniformity in any law must recognise that there are national and sectoral interests, real commercial interests, which are often wary of exposing the weaknesses of their underbellies, each to the other. Indeed, such is the tightness of the market that each is equally often reluctant to reveal even its strengths. And if there remain common lawyers who view this conference as a civilian coup, take heart from the words of Sanborn who, in 1930 told us that

The usages of the Italian merchants have crystallised into a universal body of rules, and these rules, as the basis of a long series of interpretations and of judicial decisions, have become a part of English law, and are accepted in the English courts to this day as having a binding and exclusive force.

Against this background of centuries of jurisprudential jousting between civilians and common lawyers, we have spent three days in retrospection, introspection and prospect. And I have now been given the privilege of reflecting upon the extent of our successes and our failures. I am most grateful for the opportunity. But I have been asked to speak from a common law perspective, with our colleague Prof Antoine Valliard speaking for the civilians. I shall try therefore to shed my Roman-Dutch–English law schizophrenia and step back across the Channel, called to order by Sir Mackenzie Chalmers.

We all know of our common roots. But the Doctors’ Commons is long demolished, and the reality is that there are now real differences in the approach to some fundamental issues of marine insurance, and as many of general legal principle. And it would be naïve to think that it would be an easy matter to erase these significant differences with a stroke of an international pen, and bring about full uniformity of the law of marine insurance. Competition in policy benefits, enshrined in the EU, is, at least to an extent, fuelled by jurisprudential differences. We would need to respond to a valid jurisprudential need to "fix" a real problem, as Ron Salter expressed it, and in so doing we would have keep an ear to the market. Though there could be areas where the lawyers genuinely believe the law has failed, regardless of how comfortable time has made the market with that failure.

Let me briefly trace some of the main points of our common law speakers — the categorisation of them as such being purely for convenience, and not recognition, or worse, exacerbation of any essential jurisprudential gulf wrought by the English channel.

With some trepidation, and conscious of the fact that I merely offer a checklist (in anticipation of both the red light and the ping of the Huybrechts bell), may I suggest that we have identified the following areas where there are differences in our various systems.

Good faith is to govern in the contract of marine insurance. The subtleties of law are to be made to yield to that equity which is the soul of commerce.

A hundred years later, across the Channel, good faith (or a variation of it) was recognised by the Marine Insurance Act. Yet we saw that many common law systems appear reluctant to embrace the requirement of good faith throughout the performance of the contract as founding a stand-alone remedy, or at all. We await eagerly the outcome of The Star Sea appeal. High on my wish list would be the acceptance of the general principle that good faith not only pervades the contract of marine insurance, but also that its absence gives rise to a remedy and a right to claim damages — The return of the exceptio doli.

In addition to the basic requirement of good faith, we found differences in its extent. The English jurists coined a comparatively recent term in the utmost good faith (then, to trick the Americans into embracing it as well, giving it a pedigree beyond its years with a Latin name). Other than the Germans, the continentals are content with good faith. They see no need for degrees of better and best faith. We in South Africa have also, rightly or wrongly, jettisoned the label "utmost", though not the principle of good faith. We need clarity.

Third, we were alerted to differences in the scope of good faith, by whatever label it be called. Does it include, and indeed provide the foundation for non-disclosure, misrepresentation and even of alteration of risk during the period of cover? One thing is certain, good faith, contrary to much common law understanding, goes way beyond the duty to disclose.

I cannot help but wonder just how many Corvettes are at present torpedoed by their owner-insured’s having, unwittingly even, breached some trivial warranty contained in the proposal since the inception of cover. Remember that under the English system, cover automatically ceases when a warranty is breached.

Clearly the existence and the treatment of warranties is one of the most fundamental differences apparent in the two systems. But we need to be conscious of the fact that getting rid of the warranty is no easy stroke of a pen. There is an established market built upon the warranty, which we would need to consider in the process. Yet I maintain my stance that if something is manifestly wrong, it is sometimes up to the lawyers to stand up and be counted in making it right.

We saw, for instance, the difference in the way our French colleagues treat inherent vice and latent defect. And also piracy and barratry.

But perhaps the most substantial difference is in relation to our most profoundly important category of cover: the peril of the seas. And here the differences do not follow the drawn battle lines of the common and civilian systems. Some regimes cover all perils at sea as les fortunes de la mer. Others, only perils of the sea itself. The Italians, so we heard from Prof Boi, cover all risks on or of the sea.

Some systems require a lack of foreseeability, others afford cover notwithstanding that foreseeability. To the extent that the phrase appears all over the world as the cornerstone of cover, uniformity in interpretation would surely be desirable.

Which brings us to:

But even if that be so, we need to recognised the need for commercial people who write contracts to have confidence that the court will give effect to what they have written — unless of course rectification of common error is justified to give effect to the consensus of the parties.

Yet, if we are to progress in our examination of marine insurance internationally, we cannot shy away from causation, even if we make no attempt to "fix it". It has bearing on so many issues of marine insurance. Good faith, non-disclosure, misrepresentation, alteration of risk and others, all draw on cause to cater for and give cover for effect. To leave causation out of the equation, would be like trying to turn on the lights with all gas and no matches.

What we have learnt this week though is that we need to recognise, respect and accommodate the reality of different tests of cause, so that they do not become a silent bar to common principles in other areas.

But we have also been told of the Antwerp marine policy, and of its lack of a choice of law clause. We have learnt of terms lent from one system to another, resulting in the standard terms of one country being interpreted in another, and worse, being there interpreted according to the local court’s understanding of the foreign system. I believe that we have heard enough differences in jurisprudential interpretation this week to caution against the application of one nation’s laws and jurisprudence by the courts of another — except where this in unavoidable. Issues such as insurable interest and the time it is needed, abandonment, time bar and not least causation, quite apart from the nuances of interpretation of a foreign language, should shine the red conference light to us all — notwithstanding the "skill and imagination" of practitioners to which Christian Diereeck referred. Or perhaps the more so because of it.

With those perforce brief and I hope not too inaccurate reflections of at least some of the important issues raised by our speakers, may we now go away with a feeling of commonality, or do we retreat into the laagers of our legal systems and markets, still in the belief that we are better or at least fundamentally different from them? Perhaps we can take comfort in our similarities.

Time does not allow an exploration of similarity to balance this brief venture into differences. But similarities are clearly not as important as differences.

And here we are drawn to Tom Reme and the CMI initiative. That the CMI is taking marine insurance seriously as a real issue of harmonisation, is evidenced by the attendance of its President, Patrick Griggs, and by half of the CMI Council throughout the week. The CMI’s international working group on marine insurance took advantage of this gathering of expertise to have a meeting on the "road ahead". As Tom has indicated, that road has two stops identified already: Toledo in September 2000, and Singapore in February 2001. Only at those stops will we be able to see if some accommodation is a necessary and attainable goal. And without your participation, the CMI’s task will be the more difficult.

I would hope that all of us here will help the CMI by continuing the open exchange of the Oslo Symposium and of this splendid conference, and that we will in so doing take heed of the words of Pothier that

Insurance is a contract belonging in its origin to the law of nations…

and of Emerigon

We must have recourse to the laws of other nations, as well for the better apprehending of the spirit of the Ordinances, as for determining cases not foreseen by them.

In that way we will hopefully get nearer to Emerigon’s essential natural reason to which I referred earlier in the week.

Then, even if we and the CMI do not achieve a set of Lombardy Rules, a international Sturley Restatement, or even an Antwerp Model Law, we may at the very least slow the headlong leap by some national jurisdictions towards a go-it-alone solution such as the USA COGSA or its OPA. At worst we could perhaps help such determined jurisdictions to plot their courses into the future, by looking to their past and to the undoubted common ground in many present practices.

In conclusion, may I make so bold as to suggest that due to the vision of Marc Huybrechts in bringing us all together this week, there is now at least one person in each of the 32 jurisdictions represented at this conference to act as a sheet anchor in his/her respective country to discourage its jurisdiction from hoisting a perhaps reckless spinnaker on the winds of change. National jurisdictions should rather go back to one of the basics of ancient marine insurance practice and seek the safety and security of sailing in convoy — with or without a warranty of convoy.

But if we dare break ranks and sail out of convoy, let us do so not only on the winds of change, but also by harnessing the full force of our common roots, of equity and fairness, and particularly of the market which our industry serves.