Lectures on Marine Insurance Law
The Cour Outline
IMO International Maritime Law Institute
Malta, January 2004
Professor Dr. Marko Pavliha
marko.pavliha@fpp.edu
1.INTRODUCTION
Lecturer and students introducing themlves.
Scope of lectures: e this cour outline. Plea study and prepare the ca study (e the “Appendix”) which will be discusd during the last lecture on marine insurance law.
Basic cour material: available at the IMO IMLI library (M. Pavliha: Lectures on Marine Insurance, IMO IMLI, Malta, 2000, 334 pages). See also the “Suggested Bibliography” at the end of this cour ou
tline.
2.DEFINITION OF INSURANCE AND THE CLASSIC LONDON INSURANCE
凿壁偷光文言文
MARKET DIVISION OF INSURANCE
Introduction to risk management: (1) identification of risks, (2) evaluation of risks, (3) control of risks, (4) finance the risks: insurance, bank deposits, captives, other.
What is insurance: the primary function of insurance is risk transference and distribution.
By effecting insurance, the insured transfers the risk of economic loss to the insurer, who in turn redistributes the risk through investment and reinsurance arrangements Contract of insurance is a contract under which one person (the insurer) is legally bound to pay a sum of money or its equivalent to another person (the insured), upon the happening of a specified event involving some element of uncertainty as to time or likelihood of occurrence, which affects the insured’s interest in the subject-matter of the insurance (F. Marks & A. Balla). The insured is actually buying his “peace of mind”, the “invisible product”.
Non-marine insurance:
西洋参的功效与作用及禁忌insurance of persons: it deals with the life, physical integrity or health of the insured and is divided into individual insurance and group insurance.
damage insurance: property insurance and liability insurance.
Marine insurance: the object is to indemnify the insured against loss incident to marine adventure.
Identical division of insurance in continental markets and civil codes (e.g. France, Italy).
Another possible division of insurance (e.g. under the EU directives): life insurance and non-life insurance (including marine insurance).
World insurance in 2002: insurance companies wrote USD 2.627 billion in premiums worldwide (USD 1.536 billion life insurance, USD 1.091 billion non-life insurance). On average life premium reprents 5,4% of GDP and non-life 3,9% of GDP. See Sigma: World Insurance in 2002: high premium growth in non-life insurance, Swiss Re, No.
8/2003.
Marine insurance markets in 2002: a ries of disasters. Possible future developments:
(1) the return to co-insurance practices, (2) the achievement of market internationalisation,
(3) the arch for alternative risk financing tools. See a comprehensive report on marine
insurance in /annual/insurance/insurance-a/insurance-a.html.
Lloyd's of London: Lloyd’s is the world’s leading insurance market (it is not a company!) with a capacity to accept insurance premiums of more than £12 billion. It is the world’s cond largest commercial insurer and venth largest reinsurer. In 2002, 86 syndicates were underwriting insurance at Lloyd’s (there ud to be around 400 syndicates!), covering all class of business (13% marine) from more than 100 countries worldwide.
Over 140 firms of Lloyd’s brokers were placing risk. Approximately 5% of world reinsurance is placed at Lloyd’s. Lloyd’s is regulated by the Financial Services Authority.
The number of corporate members is increasing (830). Due to the past bad results (significant loss in 1988-1992, the 11th September 2001) there are now radical proposals for reform: the creation of a franchi, a new partnership between the business in the market and Lloyd’s, which runs the market. See .
3.DEFINITION OF MARINE INSURANCE
Definition: the contract of marine insurance is a special (insurance) contract of indemnity which protects against physical and other loss to moveable property and associated interests, as well as against liabilities occurring or arising during the cour of a a voyage (R. Thomas). S. 1 of MIA 1906: A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the assured, in manner and to the extent thereby agreed, against marine loss, that is to say, the loss incident to marine adventure.
Contract of indemnity: “The great principle of the law of insurance is that it is a contract for indemnity. The underwriter does not stipulate, under any circumstances, to become the purchar of the subject-matter insured; it is not suppod to be in his contemplation: he is to indemnify only.” – per Lord Ellenborough in Brotherston v. Barber (1816) 5 M & S 418 at p. 425. Ideally, the insured should be compensated only to the extent of his loss. In practice, however, this is not always easy to attain (S. Hodges). Thus, a policy of insurance is not a perfect contract of indemnity. See Irving v. Manning (1847) 1 HLC 287. Common law and civil law definitions of marine insurance: they are very similar.
Terminology of marine insurance in a nutshell:the insured (assured, policyholder), the insurer (underwriter, assurer, insurance company), the subject-matter insured and many other terms peculiar to marine insurance, which will be explained throughout the cour.
Lawful marine adventure: one where any ship, goods or other movables are expod to maritime perils; the earning or acquisition of any freight etc., any third party liability etc.
Maritime perils: (1)perils of the as = fortuitous accidents or casualties of the a (heavy weather, sinking, stranding, collision, contact), not including the ordinary actions of the winds and waves; (2) fire, war perils, pirates, rovers, thieves, barratry etc. See The Captain Panagos DP [1985] 1 Lloyd's Rep. 625. The element of fortuity is of crucial importance.
A contract of marine insurance may cover mixed a and land or a and inland waters
risks (e.g. the Transit Clau under the Institute Cargo Claus: “warehou to warehou”).
Difference between insurance law and other legal branches, e.g. maritime law.
天荒坪
4.ORIGINS
9th century B.C.:Lex Rhodia de iactu (the birth of “modern” general average = an extraordinary sacrifice or expenditure which is intentionally and reasonably made or incurred, for the common safety, for the purpo of prerving from peril the property involved in a common maritime adventure).
7th century B.C.:Phoenician maritime law, e.g. general average and marine insurance (traces to be found in the Talmuds of Jerusalem and of Babylon at the beginning of our era).
384 – 322 B.C.:the shipping loan(foenus nauticum) of Greek and Roman origin (the oldest texts are to be found in certain pleadings of Demosthenes). If the loan was bad on the ship (bottomry), the borrower had to repay it with high interest only in the ca of a successful voyage.Loan could be also bad on cargo( respondentia).
1347:the oldest marine insurance policy (Genova).
1370:the birth of marine reinsurance.
15th – 16th century:fragmentary insurance regulation in medieval cities (e.g. Barcelona, Venice, Florence).
1562:Ordo super ascuratoribus (Dubrovnik) - probably one of the oldest insurance legislation.
1563:the King Philip II Ordinance on Marine Insurance (Belgium).
贴对联的左右顺序
End of 16th century:Le Guidon de la Mer (private collection of marine customs).
1681:The Marine Ordinances of Louis XIV (also received with great respect in the courts of England and the United States).
1688: first mention of Edward Lloyd's Coffee Hou in Tower Street, London.
1779: Lloyd's standard marine policy – the SG (Ships and Goods) Policy.
红烧牛肉粉1808:Code de Commerce (France).
爱尔兰留学
1859:The Antwerp Marine Insurance Policy.
诗朗诵配乐纯音乐1871:The Norwegian Marine Insurance Plan.
1884:The Institute of London Underwriters.
1906:The Marine Insurance Act 1906 (U.K. – Sir Mackenzie Chalmers).
1919:The German General Rules of Marine Insurance (ADS).
Modern era: the Institute Claus (1982, 1983, 1995, 2003), the Antwerp Marine Policy, the new policy form MAR (1982, 1991), the American Claus, the UNCTAD Claus (1984), the German Claus (DTV Cargo 2000), the CMI attempts to unify the law, etc. 5.TYPES OF MARINE INSURANCE
Hull insurance: insurance of the vesl with its gear.
Cargo insurance: insurance of goods carried by a.
Insurance against the liability of the carrier: protection and indemnity; compulsory insurance – e.g. CLC’69, HNS’96; voluntary insurance – e.g. liability for cargo.
Other types of marine insurance: e.g. freight, salvage expens, general average contributions.
6.SOURCES OF LAW
Lack of international law: no international convention on marine insurance.
Recent attempts to unify the law: The CMI International Working Group has identified non-disclosure, good faith, alternation of risk and warranties as being the most controversial areas of marine insurance. However, there is no prospect for international instrument (e.g. convention, model law).
MIA 1906. Much of the world’s marine insurance business is transacted in London and is governed expressly or impliedly by English law.
Acquis communautaire: the three generations of EU directives, unfortunately nothing on insurance contracts.
Standard claus: e.g. the Institute Claus (ICC, ITCH, IVCH, etc.) reflecting an international lex mercatoria (about 70% of all marine insurance contracts are bad on tho claus).
Commercial practice: e.g. the Lloyd’s slip placing system.
Court decisions (ca law): especially in the common law countries (e.g. England, USA, Canada, Australia).
Arbitration decisions.
Doctrine: articles, books, etc. written by eminent scholars.
7.EXAMPLES OF MARINE INSURANCE LEGISLATION
Law on companies (“status” law) and contract law.
存款利率计算Belgian marine insurance legislation, August 21st, 1879: the statute became a part of the Code of Commerce, ctions 191-250.
German Commercial Code 1897 (HGB): including rules on marine insurance (§§ 778-900).
The U.K.Marine Insurance Act 1906(MIA 1906): “the mother of all marine insurance statutes” (94 ctions + First Schedule (Form of Policy: Lloyd’s S.G. policy + Rules for Construction of Policy) + Second Schedule (Enactments Repealed). It came into force on 1st January, 1907.
The Australian Marine Insurance Act 1909 (bad on MIA 1906).
The Canadian Marine Insurance Act 1993 (bad on MIA 1906).
The French Code des Assurances (including Law No. 67-522 of July 3, 1967 and Decree No. 68-64 of January 19, 1968 which compri marine insurance).
Civil Code of Quebec 1991, Articles 2505 – 2628.
Other legislation.
8.WHO PROVIDES MARINE (RE)INSURANCE?
Insurance companies: stock/shareholding companies, mutual companies.
Reinsurance companies: marine reinsurance and retrocession.
Lloyd's of London: it is a market, not a company. See above.
The role of insurance brokers and insurance agents: the agent – the insurer, the broker – the insured.
Protection and Indemnity Clubs (P & I Clubs): liability insurance.
Insurance and reinsurance pools: for huge risks (e.g. oil rigs, aviation, nuclear plants), bad on co-insurance.
