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References
Marine Insurance Act 1906 S. 67(1).
Bennett, H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, pp 344–362; Basically, the term “measure of indemnity” means “the extent of the liability of the insurer for loss”, i.e. the maximum amount which the insurer must pay in event of a claim under the policy. Within the Marine Insurance Act 1906, the term “measure of indemnity” is to be found in s. 67–78 thereof. S. 67(1), mostly defines the term, while s. 67(2) of the MIA 1906 precisely states the recoverable proportion of the measure of indemnity and the remaining sections give the basis on which the measure of indemnity is to be calculated each time, according to the case involved. The measure of indemnity laid down in these sections is exhaustive. Losses falling outside these sections are irrecoverable. S. 75(1) of the Marine Insurance Act 1906 extends the principles of indemnity set out in the Act to forms of cover that are marine in nature but, nevertheless, are not dealt with by the Act, i.e. double insurance, want of insurable interest or the fact that the subject-matter was not at risk due to any factual or legal reason when the loss occurred. Equally if part of the matter was not at risk, the insurer’s liability is reduced proportionately, as in the case of share certificates-which are not within the definition of cargo-dispatched by sea (Baring Brothers & Co v Marine Insurance Co (1894)10 TLR 276; Forbes v Aspinall (1811)13 East 323; Rickman v Carstairs (1833)5 B&Ad 651; Tobin v Harford (1864)34 LJCP 37). S. 75(2) of the Marine Insurance Act 1906, draws the obvious point that the measure of indemnity may be subject to other provisions of the Act which may operate to reduce the insurer’s liability (Forbes v Aspinall (1811)13 East 323; Rickman v Carstairs (1833)5 B&Ad 651; Tobin v Harford (1864)34 LJCP 37).
Merkin R (ed) (1997) Colinvaux’s Law of Insurance, 7th edn, S&M, London 1997, pp 169–172.
It is upon that value that the premium is calculated (Merkin R (2000) Marine insurance Legislation, LLP, London, annotated s. 27–30 of the Marine Insurance Act 1906; Bousfield v Barnes (1815)4 Camp 228).
Wilson v. Nelson (1864)33 LJQB 220; Merkin R (2000) Marine insurance Legislation, LLP, London, annotated s. 27–30 of the Marine Insurance Act 1906.
Although the presumption, that this is the appropriate date, is rebuttable, where the evidence demonstrates that the assured’s loss is properly felt at the time and place of the casualty (The Captain Panagos [1985] 1 Lloyd’s Rep 625).
No allowance is made for market appreciation, expected profit on cargoes at the destination, or replacement cost of a capital asset (Grime R (1991) Shipping Law, S&M, London, pp 370–371; Irving v Manning (1847)1 HL Cas 287, Woodside v Globe Marine Insurance Co (1896)1 QB 105, Helmville Ltd v Yorkshire Insurance Co Ltd (The Medina Princess) [1965] 1 Lloyd’s Rep 361; Merkin R (2000) Marine insurance Legislation, LLP, London, annotated s. 27–30 of the Marine Insurance Act 1906).
North of England Iron SS Insurance Association v Armstrong (1870 LR 5 QB 224, SS Balmoral v Marten (1902) AC 511 HL; Hodges S (1996) Law of Marine Insurance, Cavendish Publications, Ch 5.
Merkin R (ed) (1997) Colinvaux’s Law of Insurance, 7th edn, S&M, London 1997, pp 169–172.
Barker v Janson (1868) LR 3 CP 303; Herring v Janson (1895)1 ComCas 177; Muirhead v Forth & North Sea Steamboat Mutual Insurance Association (1889)2 AC 72; The Main (1894) P 320.
See Lewis v Rucker (1761)2 Burr 1167, Haig v De la Cour (1812)3 Camp 319, despite the fact that over valuation is not enough to prove that, as also shown in General Shipping & Forwarding Co v British General Insurance Co Ltd [1923] 15 Ll LR 175, Papadimitriou v Henderson [1939]64 L1LR 345.
Steamship Balmoral Co v Marten [1902] AC 511.
(1761)2 Burr 1167.
(1847)1 HL Cas 287.
In Denoon v Home & Colonial Assurance Co (1872) LR CP 341 a ship carrying both passengers and rice was wrecked, resulting in a total loss of the rice and its freight. Nearly all the passengers survived and their passage money was paid. The assured claimed for a total loss on a policy on chartered freight valued at £2,000 and insured for £1,000. Although freight in the policy in question did not include passage money, it was held that a valuation of freight in a valued policy refers, in the absence of contrary intention, to a full cargo which there had never been. Consequently, in calculating the measure of indemnity, the policy was to be treated as unvalued insurance of half the lost freight, not exceeding £1,000 (Bennett H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, pp 344–362).
(1847)1 HLCas 287.
Herring v Janson (1895)1 Com Cas 177.
(1868) LR 3CP 303.
(1894) P 320.
To the extent of such a discrepancy between an agreed valuation and the true loss, marine insurance law departs from a perfect indemnity principle (Irving v Manning (1847)1 H.L.C. 287) and such a departure is sanctioned on the ground of commercial convenience (Lidgett v Secretan (1871) LR 6 CP 616) and is not viewed as infringing prohibitions on wagering. The significance of the agreed valuation is not, however, confined to the measure of indemnity. In determining whether the assured has broken a warranty to maintain uninsured a specified proportion of the value of the property, the court will have regard to the agreed rather than the real value.
(1870)LR 5 QB 244.
Hodges, S (1996) Law of Marine Insurance, Cavendish Publications, Ch. 5.
An assured failing to disclose to the insurer that the agreed valuation in a single policy or the total sum of the agreed valuations of more than one policy is excessive, is guilty of a breach of a duty of disclosure. The case of Ionides v Fender (1874)LR 9 QB 531 was the first to consider non-disclosure of an excessive over-valuation as a ground for avoidance of a policy, and was followed by the cases of Gooding v White [1913]29 TLR 312, Piper v Royal Exchange [1932]44 Lloyd’s Rep 103 and Berger and Light Diffusers Pty Ltd v Pollock [1973]2 Lloyd’s Rep 442.
A valuation considerably exceeding the selling value of a ship is not necessarily fraudulent or so excessive as to require disclosure. If a policy is tainted with fraud, however, then the agreed valuation and the whole policy are at risk. The question of fraud was initially considered in the Haig v de la Cour [(1812)3 Camp 319] and later on in Loders and Nucoline Ltd v the Bank of New Zealand [1929]33 Ll L Rep 70] and The Gunford (Thames & Mersey Marine Insurance Co v The Gunford Ship Co) [1911]AC 529]. Gross over-valuation could also be evidence of a gaming or wagering policy, thus a void one as per s. 4 of the Marine Insurance Act 1906 (Ionides v Fender (1874)LR 9 QB 531).
Overvaluation is as binding as if it were accurate or under-valued, except in extreme cases where gross overvaluation may be misleading thus constituting material misrepresentation. However, valuation must be sharply distinguished from the extent of the cover (Grime R (1991) Shipping Law, S&M, London, pp.370–371).
[2000]3 QBD.
In Wilson v Nelson [(1864)33 LJ QB 220] a careful distinction had been drawn between the sum insured and what was required if there was to be a valued policy. It was common for a policy of marine insurance to be a valued one as agreement on valuation avoided disputes over valuation in the event of loss, (Barker v Janson (1864 LR 3 CP)) and also because although the agreed value was not conclusive for determining whether there had been a constructive total loss, nevertheless, the Institute clauses had for many years provided that the insured value was to be taken as the repaired value, making it often more difficult for there to be a constructive total loss. In the present case the words “value to be insured” contained in the proposal, were not indicating that the value so stated would be agreed as the insured value by underwriters, as nothing pointed to the intention that the sums stated in the schedule were to be the agreed value of the yacht and her equipment. The words “sum insured” ordinarily indicated a ceiling on recovery in an unvalued policy.
[2002] Lloyd’s Rep IR].
[2000]3 QBD.
[2005] EWHC 19 (Comm)
Merkin R: Insurance Law Update 2003–2006.
Spaidiotis K (1999) Marine Insurance Law in Greece, Maritime Advocate, Is-s.7.
Skouloudis Z (1998) Private Insurance Law, 3rd edn, PN Sakkoulas Publications, Athens, Greece. It must be noted that in the Greek marine insurance law, the measure of indemnity is governed by the clauses of general law, as various case law has also elaborated (Athens Court of First Instance: ΠΠρAϑ 14133/1984 ENΔ, Piraeus Court of First Instance: 904/1985 EE/μπΔ 36,698 Athens Court of Appeal: EϕAϑ 10200/1984 EΣυγκΔ 13,473 ).
See Velentzas I (1998) The New Law of Private Insurance, Ius Publications, Athens.
Athens Court of Appeal EϕAϑ 6191/81 EɛμπΔ 33,263; Kalantzis AK (1998) Private Insurance Law-Cases and Materials, Nomiki Vivliothiki Edn, Athens.
Skouloudis Z (1995) The Law of Private Insurance, 2nd edn, P Sakkoulas Publications, Santaroza 1d, Athens, p 384.
Papapolitis NI (1957) Insurance of the Liability of the Shipowner, Athens, p.127.
Article 269(2) of the CPML (KINΔ) provides that the insurer is not obliged to indemnify the assured owner of the vessel for collision damages paid to third parties relating to harm in body or health. However, an expressed opposite agreement is permitted. (Skouloudis Z (1995) The Law of Private Insurance, 2nd edn, P Sakkoulas Publications, Santaroza 1d, Athens, p 384.) The reason for this exclusion is that the insurance of the vessel cannot include life insurance which is the object of general, private insurance (Kiantos DV (1998) Insurance Law, 6th edn, Sakkoulas Publications, Thessaloniki, p 108). Life insurance is compulsory to passengers of vessels operating between Greek ports and the price of the ticket embraces the respective premium(Art. 1–3, Presidential Decree 91/1979).
Papapolitis NI (1957) Insurance of the Liability of the Shipowner, Athens, pp. 224,271,272.
Skantzakis (1970) Insurance Lessons, Athens, p. 200.
Argyriadis A (1986) Elements of Insurance Law, 4th edn., Sakkoulas Publications, Thessaloniki p 117.
Papapolitis NI (1957) Insurance of the Liability of the Shipowner, Athens, p 207.
Spaidiotis K (1999) Marine Insurance Law in Greece, Maritime Advocate, Iss.7.
Ch. 4§ 18 of the Norwegian Marine Insurance Plan (1996) Commentary. <http://exchange.dnv.com/nmip/index.htm>
Ch. 4§ 19 of the Norwegian Marine Insurance Plan (1996) Commentary. <http://exchange.dnv.com/nmip/index.htm>
Wilmot N (1975) The Contract of Marine Insurance in English and Norwegian Law: Part I and II, Oslo, p 5/20.
Ch. 4§20 of the Norwegian Marine Insurance Plan (1996) Commentary. <http://exchange.dnv.com/nmip/index.htm>. The provision is based on ND 1956.323 NH “Pan”, where the question was how the limitation up to the sum insured was to be applied in the event of a casualty with a “mixed cause”. Liability for the damage to the ship was apportioned, with the marine insurer covering 40% and the war-risks insurer 60%. The costs of repairs, etc. exceeded the hull valuation, but the assured demanded full compensation, alleging that each of the insurers was liable for his share of damage to the ship up to his sum insured. The Supreme Court rejected the claim on the grounds that the assured shall not “in a case of a combination of different perils, be in an economically more advantageous position than if there had been no combination of different perils”.
Lenfest v Coldwell 525F2d 717, 1975 AMC 2489(2d Circuit 1975); NY & Cuba Mail SS Co v Royal Exchange Assn, 154 Fed Rep. 315.( Schoenbaum TJ (1999) Key Divergences Between English and American Law of Marine Insurance, Cornell Maritime Press, p 27).
Purofied Down Prods Corp 278F2d 442; In the United States also, the parties’ determination in this regard will be accepted in the absence of fraud, or breach of the duty of utmost good faith. (Schoenbaum TJ (1999) Key Divergences Between English and American Law of Marine Insurance: A Comparative Study, Cornell Maritime Press) Also, the valuation clause in the American Institute Hull Clauses makes it clear that all leased equipment is to be considered part of the subject-matter insured and included in the agreed value.
Fraud is a recognized exception, under American Law, to the rule that valuation is conclusive (Lenfest v Coldwell 525F2d 717,1975 AMC 2489(2d Circuit 1975); NY & Cuba Mail SS Co v Royal Exchange Assn, 154 Fed Rep 315; Disrude v Commercial Fishermen’s Inter-Ins Exch 570 P2d 963, 1978 AMC 261 (Or. 1978) and Schoenbaum TJ (1999) Key Divergences Between English and American Law of Marine Insurance: A Comparative Study, Cornell Maritime Press, p 72).
(1992)14 CCLI (2d) (Nfld TD).
Hodges S (1996) The Law of Marine Insurance, Cavendish Publications, Ch 5.
Irving v Manning (1874)6 CB 391.
[1950]1 KB 555.
In Woodside v Globe Marine Insurance Co (1896)1 QB 105 the insurer was held liable for an amount based on the agreed value of a vessel following its actual total loss, even though the vessel had become a constructive total loss, before the date of the actual total loss, and therefore was worthless, by operation of an uninsured peril.
Hamilton v Mendes (1761)2 Burr. 1198; Goss v Withers (1758)2 Burr 683; Falkner v Ritchie (1814)2 M&S; Bainbridge v Neilson (1808)10 East 329.
(1898)AC 593.
Otherwise, all insurers could avoid paying on many total losses on the simple expedient of effecting some minor repairs, although there can be no objection to insurers effecting a complete reversal of a loss, for example by procuring the release of a detained vessel; See Pollurian Steamship Co Ltd v Young [1915]1 KB 922.
Navone v Haddon (1850)9 CB 30; Bennett, H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, pp 344–362.
[2004] EWCA Civ 675.
(1871) LR 7 CP 25.
(1925) 21 Ll L R 327.
[2004] EWCA Civ 418.
Luckie v Bushby (1853) 13 CB 864; Edmunds v Lloyd’s Italico [1986]2 All ER 249.
Chandris v Argo Insurance [1963]2 Lloyd’s Rep. 65; Catle Insurance v Hong Kong Islands Shipping [1983]2 Lloyd’s Rep 276; Hong Kong Borneo Services v Pilcher [1992]2 Lloyd’s Rep 593; Bank of America v Chrismas [The Kyriaki], [1993]1 Lloyd7rss Rep 137.
Transthene Packaging v Royal Insurance [1996]LRLR 32.
Ventouris v Mountain, The Italia Express [1992]2 Lloyd’s Rep 281.
[1997]CLC70.
Although apparently not for distress, as a contract of insurance is not one which has as its specific objective the assured’s piece of mind. In that case the assured’s loss was held to be caused by his own inpecuniosity and not the in surer’s failure to pay in due time (Ventouris v Mountain, The Italia Express [1991] 1 Lloyd’s Rep.441).
[1997]CLC70.
Lefevre v White [1990] 1 Lloyd’s Rep. 569, Transthene Packaging v Royal Insurance [1996]LRLR 32;Merkin (1997) (ed) Colinvaux’s Law of Insurance, 7th edn, S&M, London, pp 169–172.
[1992] 2 Lloyd’s Rep 281.
[1992] 2 Lloyd’s Rep. 281.
[1997] CLC 70.
[1992] 2 Lloyd’s Rep. 281.
In the US, such conduct of the insurer is called “the reverse moral hazard”, and for that reason some courts have made them liable for damages, contractual or tortuous, for late payment. In France, the insurer is liable not for damages as such, but for interest, on an escalating scale, i.e. the slower he is the more he pays. (Clarke M (1992) The Nature of the Insurer’s Liability, LMCLQ 287).
Rokas I (1995) Introduction to the Law of Private Insurance, 4th edn, Oiko nomikon Publications, Athens.
Velentzas I (1998) The New Law of Private Insurance, Ius Publ, Athens.
High Court: An 1683/84 EλΔ 26,650; Kalantzis AK (1998) Private Insurance Law-Cases and Materials, Nomiki Vivliothiki Edn, Athens 1998.
Piraeus Court of First Instance: ΠΠρΠειρ 1545/1980 ENΔ 9,124.
Salonica Court of Appeal: EϕΘεσ 250/1984 Aρμ 38,640; Velentzas I (1998) The New Law of Private Insurance, Ius Publ, Athens.
Piraeus Court of Appeal: EϕΠειρ 801/1992 EEμπΔ 1992,462.
Athens Court of Appeal: EϕAθ 9449/1987 EEμπΔ 1988,310.
Athens Court of Appeal: EϕAθ 10128/1983 EEμπΔ 35,465; Athens Court of First Instance: ΠΠρAθ: 10128/1983 EEμπΔ 1984,465; Velentzas I (1998) The New Law of Private Insurance, Ius Publ, Athens; Apart from cargo insurance, there also exists another type of marine insurance on future profit from the cargo upon its safe arrival at the port of destination and the extra valuation that the cargo gets once having reached its destination. This insurance covers the risk of not achieving the expected profit as an indirect result of exposure to maritime perils (Velentzas I (1998) The New Law of Private Insurance, Ius Publ, Athens)
Rokas I(1995) Introduction to the Law of Private Insurance, 4th edn, Oikonomikon Publications, Athens.
Velentzas I (1998) The New Law of Private Insurance, Ius Publ, Athens.
Total losses only occur in those types of insurance that cover an asset belonging to the assured (hull insurance, freight insurance). In a situation where the insurer covers the assured’s future obligations (cover of collision liability under the hull insurance), it will merely be a question of the liability of the insurer being limited to the sum insured, and only if a sum insured has been agreed. (See Ch. 4§1 Norwegian Marine Insurance Plan (1996) Commentary <http://exchange.dnv.com/nmip/index.htm>.
De Smet R (1960) Traité Théorique et Pratique des Assurances Maritimes, Paris, pp 410–424.
Maslanka MP (1980) Punitive Damages in the Admiralty, The Maritime Lawyer Vol V, 21.
Merkin R (2000) Marine insurance Legislation, LLP, London, annotated s. 27–30 of the Marine Insurance Act 1906.
Ruabon SS Co v London Assurance [1900] AC 6; The Medina Princess [1965]1 Lloyd’s Rep. 361.
[1997] 2 Lloyd’s Rep. 749.
(1882) 9 QBD 192.
Bennett H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, pp 378–379.
Bennett H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, p 380.
Bennett H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, Ch 18.
[1997] 2 Lloyd’s Rep. 749. The insured vessel ran aground in August 1995 and remained beached awaiting repair when in September 1995 she was further damaged by a hurricane. The cumulative cost of repairs from the two separate losses sustained by the assured’s vessel, exceeded the insurance value although the separate costs of repairing each loss did not. Although the assured wrote to the insurers asking them to treat the loss as a constructive one rather than two partial losses (due to the fact that the letter was not unequivocal) regardless of the insurers’ response the measure of indemnity had to be determined on the basis of two successive losses. The assured based his claim on the principle expressed in s. 77(1) of the Marine Insurance Act 1906 and demanded to recover for the aggregate of those losses, which if taken separately were for a sum less than the policy limits The underwriters relied upon s. 69(3) of the Marine Insurance Act 1906 and argued that the depreciation had to be determined in relation to the insured value of the vessel and that this provided a ceiling on recovery irrespective of s. 77(1) of the Marine Insurance Act 1906.
[1921] AC 188.
Lidgett v Secretan (1871) LR 6 CP 616; s. 69(3) of the Marine Insurance Act 1906.
Meyer v Ralli (1876) CPD 358.
As per Lord Justice Stuart-Smith in the case of Royal Boskalis [1997] 2 All E.R. 929.
Emperor Goldmining Co Ltd v Switzerland General Insurance Co Ltd, Sup.Ct (NSW) [1964] 1 Lloyd’s Rep. 348.
[1986] 3 All ER 767 (Privy Council).
In the context of marine insurance there is a strong argument that without a suing and labouring clause there should be no recovery for minimisation expenses carried out by the insured even though these are considered to be obligatory. The main reason for coming to this view is the difference in wording between s. 78(1) and s. 78(4) of the Marine Insurance Act 1906. Whereas s. 78(1) is conditional in relation to its applicability on there being a suing and labouring clause, s. 78(4) imposes the duty to “sue and labour” in all cases, i.e. whether there is a suing and labouring clause or not. However, there may still be room for the implication of a term allowing recovery within the limited ambit of The Mammoth Pine or if there is a trade usage or custom to that effect. This view was also reiterated by Millett L.J. in the case of Baker v Black Sea and Baltic General Insurance Co Ltd [1996] L.R.L.R. 353 and in the case of Yorkshire Water v Sun Alliance & London Insurance Ltd [1997]1 Lloyd’s Rep. 1. The issue of abandonment and its effects in the law of marine insurance may raise the issue whether the obligation to “sue and labour” survives the abandoning of the subject-matter insured. It is clear from s. 63(1) of the Marine Insurance Act 1906 that the insurer has no obligation to take over the interests of the assured upon the giving of the notice of abandonment. There is a strong argument that the subject-matter of the insurance does not become res nullius when the underwriter declines to take over the interests of the insured. (Gauci G (2000) The Obligation to Sue & Labour in the Law of Marine Insurance-Time to Amend the Statutory Provisions? IJOSL 2.)
(1992) 8 CCLI (2d) 252 (Nfld) TD.
[1929] 33 LL.Rep. 70.
[1915] AC 281.
Hodges S (1999) Cases and Material on Marine Insurance Law, Cavendish Publications, pp 203–204.
O’ May D (1993) Marine Insurance Law and Policy, LLP pp 64–66.
(1868) LR 3CP 303.
(1874) LR 9 QB 531.
Inversiones Manria SA v Sphere Drake Insurance Co Plc (The Dora) [1989] 1 Lloyd’s Rep 69.
(1874) LR 9 QB 531.
In contrast, in Piper v Royal Exchange Assurance [1932] 44 Ll.L.Rep. 103, it was held that an assured, who failed to disclose that the insured yacht was worth at most half of the value for which it was insured, had broken the duty of utmost good faith.
[2006] EWCA Civ 378.
[2004] Lloyd’s Rep IR 867.
[2002] Lloyd’s Rep IR 573.
[2004] Lloyd’s Rep IR 690.
[2005] EWCA Civ 112.
TCC, 20 October 2005
See Tonkin v UK Insurance Ltd [2006] EWHC 1120 (TCC) where the court held that fraud in respect of an insubstantial part of the entire claim would not vitiate the entire claim, and that a claim for an excessive sum for the purposes of negotiation was not in any event necessarily fraudulent.
Spaidiotis K (1999) Marine Insurance Law in Greece, Maritime Advocate, Issue 7.
Supreme Court: An (Oλ) 6/1990 NoB 1990.1321; Velentzas I (1998) The New Law of Private Insurance, Ius Publications, Athens.
§ 2-2 in the Norwegian Marine Insurance Plan 1996.
Ch. 2 § 4 of the Norwegian Marine Insurance Plan (1996) Commentary. <http://exchange.dnv.com/nmip/index.htm>.
Paragraph 2–5 of the Norwegian Marine Insurance Plan (1996).
Union Insurance Society of Canton Ltd v Wills & Co [1916] 1 AC 281; Merkin R (2000) Marine insurance Legislation, LLP, London, annotated s. 27–30 of the Marine Insurance Act 1906.
Rivaz v Gerusi Bros & Co (1880) 6 QBD 222.
O’ May D (1993) Marine Insurance Law and Policy, LLP pp 64–66.
Glencore International AG v Ryan ( The Beursgracht) [2002] 1 Lloyd’s Rep 274.
[2003] EWHC 344 (Comm) [2003] 1 Lloyd’s Rep 537.
QB, 20 Nov 2003.
Subsequently reissued in identical terms on 18th October 1995.
(1870) LR QB 584.
(1918) 29 Com Cas 114.
(1913) 108 LT 104.
Glencore International AG v Ryan ( The Beursgracht) [2002] 1 Lloyd’s Rep 274.
Glencore International AG v Alpina Insurance Company Limited, QB, 20 Nov 2003.
Glencore International AG v Ryan (The Beursgracht) [2002] 1 Lloyd’s Rep 274.
Glencore International AG v Alpina Insurance Company Limited, QB, 20 Nov 2003.
Glencore International AG v Ryan (The Beursgracht) [2002] 1 Lloyd’s Rep 274.
Glencore International AG v Ryan (The Beursgracht) [2002] 1 Lloyd’s Rep 274.
Glencore International AG v Alpina Insurance Company Limited, QB, 20 Nov 2003.
Glencore International AG v Alpina Insurance Company Limited, QB, 20 Nov 2003.
See Schoenbaum TJ Admiralty and Maritime Law, 3rd edn, Hornbook Series, West Group, St.Paul, Minn. USA, 2001.
(1992) 14 CCLI (2d) (Nfld TD).
See Case: Fudge v Charter Marine Insurance Co (1992) 8 CCLI (2d) 252 (Nfld) TD.
Lewis v Rucker (1761)2 Burr 1167; Irving v Manning (1847)1 HL Cas 287; Barker v Janson (1868)LR 3CP 303; The Main (1894) P 320; North of England Iron Steamship Association v Armstrong & Others (1870)LR 5 QB 244.
Kyzuna Investments Ltd v Ocean Marine Mutual Insurance Association(Europe)[2000] 3 QBD; Quorum SA v Schramm(No I) [2002] Lloyd’s Rep IR].
Kyzuna Investments Ltd v Ocean Marine Mutual Insurance Association (Europe) [2000]3 QBD.
Quorum SA v Schramm (No I) [2002] Lloyd’s Rep IR].
Spaidiotis K (1999) Marine Insurance Law in Greece, Maritime Advocate, Issue 7.
Rokas I (1995) Introduction to the Law of Private Insurance, 4th edn, Oikonomikon Publications, Athens.
Spaidiotis K (1999) Marine Insurance Law in Greece, Maritime Advocate, Issue7.
Ch.2 § 2 Norwegian Marine Insurance Plan (1996) Commentary <http://exchange.dnv.com/nmip/index.htm>.
De Smet R (1960) Traité Théorique et Pratique des Assurances Maritimes, Paris, pp 410–424.
Basically if he establishes that the defendant was “guilty of gross negligence, or actual malice, or criminal indifference which is the equivalent of reckless and wanton misconduct”. The purpose of imposing punitive damages is to deter and punish wrongful misconduct.
An expression of the policy underlying salvage rewards was reported almost 165 years ago in the decision of the English Court of Admiralty in The Industry (1835)3 Hag.Adm. 203,204 (Brice G(2000) Salvage And The Role of The Insurer LMCLQ 2000(1):26–41).
(1879)4 AppCas 755.
The Loch Tulla [1950]84 LI. L.Rep. 62.
Re Wright and Pole (1834)1 Ad & E. 621, Cator v Great Western Insurance Co of New York (1873)LR 8 CP 552, Maurice v Goldsborough, Mort & Co[1939] AC 452.
Lewis Emanuel & Son Ltd v Hepburn [1960] 1 Lloyd’s Rep. 304.
Maurice v Goldsborough, Mort & Co [1939]AC 452, Mackenzie v Whitworth (1875)1 Ex D 36.
R. v Fir & Cedar Lumber Co Ltd [1932] AC 441, London and Thames Haven Oil Wharves Ltd v Attwood [1967]Ch 772.; Jones NL (1997) MacGillivray on Insurance Law, 9th edn, London S&M, pp 856–860.
From the inception of this form of insurance, the accepted method of determining and defining insurable gross profit was by the addition of the amount of the standing charges to the net profit. But in the 1950s a simpler method was introduced in which the total of the variable expenses is deducted from the turnover. This innovation necessitated a new definition of insurable gross profit, being in a sense a reversal of the traditional one. The latter started at the end of the accounts, with net profit, and added back the insurable standing charges. The new one starts at the head of the accounts, with turnover, and then deducts the total of the variable charges, the difference between these amounts being the insurable gross profit (Riley D (1967) Consequential Loss Insurances and Claims, 3rd edn, S&M, London, pp 1–4).
Recher & Co v North British & Mercantile Ins [1915] 3 KB 277, where it was held that the auditor’s assessment was conclusive unless it could be shown he went wrong in law or omitted to take into account some material fact, such as for example the possibility that some of the damage might have been caused by something other than the peril insured against.
Bailliere, Tindal & Cox v Drysdale (1948)82 L1LR 736.
Brunton v Marshall (1922)10 Ll.L.R. 689; Jones NL (1997) MacGillivray on Insurance Law, 9th edn, London S&M, pp 856–860.
Falkanger T, Bull HJ, Brautaset L (1998) Introduction to Maritime Law: The Skandinavian Perspective, Tano Ashehoug, Oslo, Ch 22.
Ch. 16§1 Norwegian Marine Insurance Plan(1996) Commentary <http://exchange.dnv.com/nmip/index.htm>.
The wording is identical to that in the 1972 and 1993 conditions but the heading has been changed to “Total and Compromised Total Loss”.
Ch. 16§2 Norwegian Marine Insurance Plan (1996) Commentary <http://exchange.dnv.com/nmip/index.htm>.
Ch. 16§15 Norwegian Marine Insurance Plan (1996) Commentary <http://exchange.dnv.com/nmip/index.htm>.
The insurable interest of a mortgagee bank is defined in s.14(1) of the Marine Insurance Act 1906. The mortgagees’ initial requirement is for cover against the perils customarily insured by the shipowners’ hull policies and the risks normally covered by the shipowners’ P&I entries. Theoretically, cover is obtained by the mortgagee: by effecting a separate insurance to cover his own interest; in hull insurances, policies are effected in such a way that both the shipowner’s and the mortgagees’ interests are covered as co-assured; by requiring the mortgagor shipowner to assign the hull policies and P&I entry in his favour (this is done by endorsement on the shipowners; policies and P&I Club entries noting the interest of the mortgagee).
Schiffshypothekenbank Zu Luebeck AG v Norman Philip Compton (“The Ale-xionHope”) [1988] 1 Lloyd’s Rep 311.
Continental Illinois National Bank & Trust Co of Chicago v Bathurst (The “Captain Panagos DP ”) [1985] 1 Lloyd’s Rep. 625.
The form is usually drafted on the basis that a separate insurance is issued for each named individual vessel. The main aspects of this type of insurance are encapsulated in the following clauses. Clause 1 summarises the purpose and effect of the insurance. A loss, damage or liability is prima facie covered by the owners policies and club entries if it were not for a defence based upon the assured’s misconduct. There is also an important proviso in bold type that the insured peril relied on by the mortgagee must occur or exist without the privity of the mortgagee assured. Privity here includes actual privity and “blindeye” knowledge. The indemnity payable is the lesser of either the mortgagees’ actual net loss plus any claim under the duty of assured (“sue & labour”) clause, the total not exceeding the sum insured; or the claim (or part of the claim) which is not recoverable under any of the owners policies and club entries. Clause 2 sets out a full list of the insured perils. Clause 6 deals with “sue & labour”. The assured shall take measures as may be reasonable to avert or minimise a loss. The underwriters reimburse the assured for the cost of such measures and neither party is prejudiced thereby. The assured must report in writing to the underwriters any circumstances which may give rise to a claim under the insurance within thirty days of these circumstances coming to the assured’s notice and thereafter to keep the underwriters informed of the developments.
Argyriadis A (1979) Marine Insurance:A General Comparative View in the Light of Greek Law, Revue Hellenique de Droit International 32: 28–40.
Lambeth RJ (1986) Templeman on Marine Insurance: Its Principles and Practice, 6th edn, Pitman, pp 438–439.
Bennett H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, p425.
Bennett H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, p427.
(1850)4 Exch 615.
(1863)1 H&C 769.
In the case of Boag v Standard Marine Insurance Co Ltd [(1936) 2 KB 121] a cargo was insured for its full value at the time of shipment. The value rose during the voyage and an increased value policy was taken out with other underwriters. The cargo was totally lost and the assured was paid in full by the primary underwriters and the Increased Value underwriters for their respective interests. Thus, a smaller sum than the one paid by the primary underwriters was received in general average which the primary underwriters claimed in full as subrogation. By the introduction of the Clause 14 of the Institute Cargo Clauses (A),(B),(C), the result of the decision in Boag v Standard Marine Insurance Co Ltd [(1936)2 KB 121] was altered and what were considered to be the inequitable consequences have been rectified. If the assured takes out increased value insurances on conditions more limited than the primary policy, not only might he find himself partially under-insured but certain indemnities which would otherwise be payable in full under the primary policy would be reduced (O’May D (1993) Marine Insurance Law and Policy, LLP p 463).
Hodges, S (1996) Law of Marine Insurance, Cavendish Publications, pp 5–14.
(1841) 8 M & W 165.
Bennett H (1986) The Law of Marine Insurance, Clarendon Press, Oxford, p 431.
As per § 2–6 of the Norwegian Marine Insurance Plan (1996).
As per § 2–6 of the Norwegian Marine Insurance Plan (1996).
If several insurances are made subsidiary, there is a risk that the assured may be left without settlement because both or all of the insurers may invoke their subsidiarity clauses. During the Plan revision, it was decided that in such cases a primary joint and several liability should be imposed on the insurers vis-à-vis the assured. § 14 of the Norwegian Marine Insurance Plan 1964 contained a provision relating to the duty of the person effecting the insurance to disclose any other insurances he might have. The provision has, therefore, been deleted. If the insurer in a recourse settlement should need to know about other insurances, he can ask the person effecting the insurance after the loss has occurred.
Weddell v Road Transport & General Insurance Co [1932] 2 K.B. 563; McGeough v Stay’ N Save Motor Inns Inc (1994) 92 B.C.L.R. (2d) 288; Simcoe & Erie General Insurance Co v Kansa General Insurance Co (1994) 93 BCLR (2d) 1).
(1980) 22 BCLR 374.
At(1981) 27 BCLR 89.
To this effect the various cases together with the Institute Clauses have contributed a lot, mainly as a means of keeping updated the text of law as the latter is set out in the Marine Insurance Act 1906.
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(2007). Valuation and the measure of indemnity in marine insurance contracts. In: The Principle of Indemnity in Marine Insurance Contracts. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-49074-6_4
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