The development of dutchlaw 65 in its marine insurance and maritime law. For insurance the Amsterdam Ordinance of 1744 was the better one, for maritime law its elder Rotterdam sister (issued 1721) was superior in quality. Sect. 124 of the Rotterdam Ordinance (in the chapter named ‘maritime affairs between shippers and owners or masters’) obliged the master to make his ship ready (or ‘fit’: klaar) for the intended voyage and to equip it duly. Sect. 125 said: “the master has to take in the cargo and stow the goods (or have stowed them) duly. In act or neglect in regard of making the ship fit (klaar) and in duly (behoord=behoorlijk) stowing, the owners are held to make good the damages, each proportional to his owners’ portion in the ship.” Finally sect. 136 said: “Further the master is bound throughout the entire voyage up to completion of the discharge to preserve the vessel and the goods loaded, to guard them and if any defect is found, to avert these according to his possibilities (‘gebreken verhelpen’)”. One sees in the early days of Dutch law, both in its medieval origin and in the first two centuries of independence, that in all probability a basic concept of due diligence bound the carrier—or rather, as is verbally said, the master. There is hardly to be discovered a fundamental approach, based upon the very nature of the contract of carriage. We will see that political events would prove to be necessary to instigate a complete reversal of the carriage-contract concepts. 3. This new development started when the French marched into Flolland in 1795 and put up the cooperative ‘Batavian Republic’. Impressed by the example of Napoleon’s work on codification the brand new Batavian Government also started a codification procedure. The original Bill, drafted by Walraven, showed the first symtoms of the fundamental change. The Walraven-draft of 1800 followed in two provisions the Rotterdam Ordinance of 1721 (sect. 9 and 10 of Title D, to be compared with sect. 124 and 125), but in its sect. 77 we find for the first time the term: ‘warranty’ or ‘guarantee’, clearly derived from the French: étre garans, which we will meet within short. The section read: “the master only then guarantees the state of the goods if they were accepted by him personally or if damage to them is caused by negligence of the master or crew.” In general however, Walraven’s draft was not so much influenced by French—neither by German—law as in fact based upon Dutch sources: 22 of his 58 sections on ocean-carriage of goods may be traced to such sources, most to the Rotterdam-, some to the Amsterdam-ordinance. In a later draft, made by Van der Linden for the shortlived King of Holland in 1807, he treated this part of the law as part of a new Civil Code, but for his draft 5
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