1. Marine insurance law Trine-Lise Wilhelmsen Scandinavian Institute of Maritime Law
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23. The parties to the contract Insurer Person effecting the insurance The assured Insurance contract Right to compensation
24. Insurance of third party interest Insurer Person effecting the insurance The assured Insurance contract Right to Compensation
25. Insurance of third party interest, NMIP Insurer Person effecting Insurance Assured Insurance contract Right to compensation Co-insured, Ch. 7 and 8
26. Insurance of third party interest, CICG Company Seller Seller Insurance contract Right to compensation Buyer
27. Co insurance -> Partial insurance with more than one insurer Ship 600 mill NOK Insurer A 200 mill NOK Insurer B 200 mill NOK Insurer C 200 mill NOK 1/3 1/3 1/3
28. Reinsurance -> The insurer reinsures the risk undertaken under the direct insurance contract. Ship: 600 mill NOK Insurer: 100 mill NOK Reinsurer: 500 mill NOK Direct insurance: 100 % Reinsurance: 500 mill NOK
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36. Under insurance Insurable value: 1000 Sum insured: 500 Potential loss Compensation 500/1000 = 50 % Of each damage
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38. Over insurance: Sum insured: 1000 Insurable value: 660 Basis for premium Max. compensation
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43. Losses covered Damage Total loss Collision liability Loss of time Etc Perils insured Heavy weather Theft Leakage Fire Etc Causation Terminologi The casualty Causation
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49. Presumption: Two necessary causes Ship collides Collision damage The ship sinks Mine Two sufficient causes
50. Combination of covered and uncovered causes Marine insurance Bad weather Breach of Safety rule Grounding Combination of causes
51. Combination of causes covered under separate insurances Marine insurance Failure of navigation Darkening of lighthouse Grounding Combination of causes War insurance
54. Rt 1916.209 Skotfos Marine insurance Failure of navigation Darkening of lighthouse War insurance The ship runs aground Combination of causes Liability ” Dominant cause” = the most important Not relevant cause
60. Incidence of loss, NMIP § 2-11, 1: 31.12.2005 Renewal 2005 - policy Time Casualty Peril strikes No liability for the 2006 insurer
61. Incidence of loss, NMIP § 2-11, 2: Develop ment Fracture 2004 2006 2004 - policy 2006 - Policy Viz: -Primary damage attributed to the point in time when the peril struck -Consequential damage covered when development occurs
63. Incidence of loss, NMIP § 2-11, 2: Develop ment Fracture 2004 2006 2004 - Policy 2006 - Policy Defect 2000 ” Peril strikes” But: deemed to be a marine peril which strikes at the time of the extension
Notas del editor
Hull insurance = objective value of the ship Covers partiel damage/total loss Covers collision liability up to the sum insured under hull insurance Part of the income loss Hull interest An addition to hull insurance Covers part of the economic interest for Total loss – value not covered by hull insurance Collision – the difference between hull value and full market value The relationship between hull and hull interest: Starting point: Hull insurance covers the hull value, which reflects the futyre income of the ship. Hull insurance value is assessed, i.e. As agreed between the parties. This value therefore does not necessarily cover the ships full value. Theoretically, it is therefore room to set an additional top value to the hull for total loss. I practice insurers have also been willing to provide hull interest insuance in situations where the assessed value under the hull policy correspond to – or even is higher than – the full value of the ship at the time of the inception of the insurance. In order to limit the risk of over evaluation, there are limitations to the right to take out hull interest insurance.
Loss of hire insurance cover loss of income during the time when the ship in under repair, and thus not earning any rates. Loss of hire is preconditioned on a hull damage, and will not be triggered when there is a total loss Freight interest insurance may be compared to hull insurance – additional cover for loss of income connected to total loss. The main point is to cover loss arising from expiry of a pre- determined long term contract of affreightment which the owner had entered into, or Loss because the ship is taken out of a predermined form of employment in the case of total loss. As with hull insurance: restrictions as to the amount of freight insurance. P& I insurance not regulated in the Plan. History: English Hull insurers wanted only to cover ¾ of collision liability. ¼ and liability for personal injury (Protection) covered by mutual shipowner associations. Took over damage to cargo (Indemnity) . Collision liability: Hull insurance up to assessed value P&I insurance claim above full market value of the ship Hull interest: the amount in between
Two set of distinctions Marine/civil risks – concerns the scope of cover, i.e. what perils the insurance cover In general a main distinction is made between these two sets of risk. Before the 11 sept 2001 war risk insurance was cheap and gained little attention After, the terrorism risk has made the war risk extremely expensive. The reinsurance market denied covering it for a while, and has included severe limitations to the cover. Today the market is loosening up a bit, but still war risk is totally different from before. Organized in a special way (in civil law countries):
UNCTAD: Expert group working in 1977-1986 International ”standard clauses” for hull insurance and cargo insurance Published in 1989 ’ Supposed to function as guide lines for konstruction of new standard marine insurance clauses in different countries. Not successfully
Added cover = liability insurance for off shore structures and legal aid insurance International Group: 13 large mutual associations England/Bermuda/Scandinavia Pooling Agreement = common reinsurance system. Not standardized, but great similarity
For the purposes of this Plan ( a)the insurer ( assurandøren) : means the party who under the terms of the contract has undertaken to grant insurance, Coinsurance/reinsurance ( c)the assured ( sikrede) : means the party who is entitled under the insurance contract to compensation or the sum insured. In liability insurance the assured is the party whose liability for damages is covered ( b)the person effecting the insurance (forsikringstageren) : means the party who has concluded the insurance contract with the insurer, Insurance of third party interest = insurance effected for the benifit of a third party NMIP = chapter 7 and 8 CICG = Sale on cif conditions – seller effects insurance, buyer covered when risk is transferred to buyer,
Konstruksjonen innebærer et trepartsforhold: I tillegg til skadevolder og skadelidte får vi inn et forsikringsselskap. Forsikringsselskapet hefter sammen med skadevolder overfor skadelidte = sml med arbeidsgiveransvaret. Men: Selskapets ansvar hviler på en forsikringsavtale mellom skadevolder som sikret og selskapet. Dvs skadevolder/sikrede betaler premie for å løfte ansvaret over på forsikringsselskapet + det er forsikringsavtalen og BAL, og ikke alminnelig erstatningsrett, som bestemmer forholdet mellom skadevolder og selskapet. Modellen generell og benyttes også for Yrkesskader og legemiddelansvaret. Pasientskadeerstatningsloven er delvis bygget opp på samme måte.
§ 7-1. Rights of a mortgagee against the insurer If the interest covered by the insurance is mortgaged, the insurance also covers the mortgagee’s interest , but the insurer may invoke the rules relating to identification in §§ 3-36 to 3-38. § 8-1. Rights of third parties against the insurer 1. If the insurance is explicitly effected for the benefit of a named third party, the insurance also covers his interests , but the insurer may invoke the rules relating to identification in §§ 3-36 to 3-38.
CICG § 9 : If nothing has been specified as to whose interest is covered by this insurance, it shall inure to the benefit of the person effecting the insurance and persons to whom he has transferred title to or a security in the goods, provided such security has been established through assignment of a transport document for the goods. If the insurance has been effected by the seller, and the sales contract and appurtenant terms of delivery or a special agreement do not state that the buyer’s or other subsequent owners’ interest in the goods is to be covered by the insurance, the insurance does not cover these persons’ interest in the goods.
§ 9-1. Definitions 1. “Claims leader” (hovedassurandør) means the insurer who, at the time the insurance contract is entered into, is identified as claims leader. “ Co-insurers” (koassurandører) means other insurers who have accepted a proportion of the insurance of the interest against the same perils and who are directly liable to the assured. § 9-2. The right of the claims leader to act on behalf of co-insurers 1. Unless otherwise agreed, the claims leader is entitled to take the steps referred to in §§ 9-3 to 9-9 with binding effect on the co-insurers. In all such cases he shall, as far as possible, take into consideration the interests of all the insurers.
NB: Several reinsurers possible The assured only contract with Insurer, i.e. Need not wait for reinsurance settlement Insurer fully liable regardless of reinsurance No direct action
§ 1-3. Contracts entered into through a broker 1.If the person effecting the insurance instructs a broker to take out an insurance, the broker shall send him a draft insurance contract for his approval. 2.The approved draft shall be submitted to the insurer who shall, in the event of agreement, issue a written confirmation to the broker to the effect that the insurance contract has been concluded on the basis of the provisions contained in the draft. 3.The broker shall thereafter issue an identical confirmation to the person effecting the insurance . If the person effecting the insurance has objections to the content of the insurance confirmation, he must raise these with the broker without undue delay. If he fails to do so, the insurance confirmation shall be considered approved. 4.If the person effecting the insurance requires that a policy be issued in accordance with § 1-2 above, the broker shall assist in the issuing of such a policy. If the broker issues a policy on behalf of the insurer, the policy shall explicitly state that it has been issued by the broker on the authority of the insurer. The broker does not have the right to act on behalf of the insurer without written authority.
§ 1-2. Policy 1.When the contract is concluded, the person effecting the insurance may require that a policy be issued. The policy shall confirm that an agreement has been entered into and shall refer to the conditions . If the insurer wishes to invoke conditions which are not written in the policy or incorporated in it by reference, he has the burden of proving that the person effecting the insurance was aware of the relevant condition and that it was part of the contract. 2.The person effecting the insurance must raise any objections to the content of the policy without undue delay. If he fails to do so, the policy shall be considered approved. CICG § 1 nr 4. Insurance document means the document issued as evidence of insurance in connection with an individual transit. Open cover/floating policies = CICG Appendix § 4 and 5: cover shipments within the scope of business activities of the person effecting the insurance = certificate of insurance to evidence the contrac + separate insurance certificate in connection with the individual transport = insurance document according to § 1 nr 4.
CICG § 59. Choice of law and jurisdiction This insurance shall be subject to Norwegian law, including Act No. 69 of 16 June 1989 relating to Insurance Contracts, §§ 1-1 to 8-6 and §§ 20-1 and 20-2, unless otherwise prescribed by the Policy or these Clauses. Disputes concerning this insurance shall be decided by the ordinary courts of law in the judicial district in which the Insurer has his headquarters. § 1-4. Reference to Norwegian jurisdiction and choice of law 3. If an insurance contract has been concluded on the basis of this Plan with a foreign leading insurer, it is agreed that Norwegian law shall apply, and that the co-insurers may be sued in the venue of the leading insurer. Relationship to ICA: NMIP: Most questions regulated differently, but the relationship to ICA presented all through the Commentaries. CICG: More closely tied to ICA Gard: 90: ”But the provisions of the Insurance Contracts Act of 1989 shall not apply”
NMIP § 2-1. Insurance unrelated to any interest A contract concerning insurance which does not relate to any interest is void. corresponds to MIAs rules concerning Insurable Interest. Sec 4: (1)†Every contract of marine insurance by way of gaming or wagering is void. NL 5-1-2 – Contracts against the law or against moral dignity is void. CICG § 18. Risks excluded 4. The goods being intended for unlawful purposes, or manufactured through unlawful activities or by unlawful methods. The illegality shall be determined in accordance with the rules in force at the commencement of the period covered by this insurance in the exporting country, the importing country or any other country through which the Assured must have expected the goods to pass.
NMIP § 2-2. Insurable value The insurable value is the full value of the interest at the inception of the insurance. CICG § 29. Insurable value Unless otherwise agreed, the insurable value shall be deemed to be the market value of the goods at the place of loading at the inception of this insurance . If the goods are sold, the market price shall be calculated on the basis of the invoice value.
NMIP § 2-4. Under-insurance If the sum insured is lower than the insurable value , the insurer shall only compensate a portion of the loss corresponding to the proportion that the sum insured bears to the insurable value . If a valuation has been set aside in accordance with § 2-3, subparagraph 1, above, it shall nevertheless be regarded as the insurable value when the rule in this paragraph is applied. CICG § 30. Underinsurance When the sum insured is lower than the insurable value , the Insurer shall only be liable for such proportion of the loss as the sum insured bears to the insurable value.
NMIP § 2-5. Over-insurance 1. If the sum insured exceeds the insurable value, the insurer shall only compensate the loss up to the insurable value. If the interest is over-insured with fraudulent intent, the contract is not binding on the insurer. CICG § 31. Overinsurance When the sum insured exceeds the insurable value, the Insurer shall only be liable for compensation up to the insurable value. Cf: insurable value maximum liability
NMIP § 2-6. Liability of the insurer when the interest is also insured with another insurer 1.If the interest is insured against the same perils with two or more insurers, each of them is liable to the assured in accordance with their respective contracts until the assured has received the full compensation to which he is entitled. 2.If one of the insurers has disclaimed liability where the interest is also insured with another insurer, he shall only be liable to the extent that the assured has not obtained cover with other insurers. ICA Section 6-3. ( the loss is covered by several insurances ) If the same loss is covered by several insurances, the insured party can choose which insurances he or she will use, until the insured party has received the total indemnity to which he or she is entitled. Common in insurance of ships Using the underinsurance principle for settlements Cargo insurance = seller and buyer insures same interest
§ 2-3. Assessed insurable value 1.If the insurable value has by agreement between the parties been fixed at a certain amount - assessed insurable value ( takst ) - the insurer may demand to have it set aside only if the person effecting the insurance has given misleading information about characteristics of the subject-matter insured that are relevant for the assessment. CICG § 29. Insurable value Unless otherwise agreed, the insurable value shall be deemed to be the market value of the goods at the place of loading at the inception of this insurance. If the goods are sold, the market price shall be calculated on the basis of the invoice value. If compensation for the goods is payable to the buyer, the insurable value shall, if applicable, also include: (a) charges incurred by him in connection with the shipment, (b) customs duty and other ordinary costs related to the transit, ( c ) the insurance premium which he is to pay, ( d ) freight which he has paid or will have to pay, ( e ) his anticipated profit. Unless otherwise agreed, the insurable value of such anticipated profit shall be 10 per cent of the insurable value of the goods as such.
NMI P § 4-18. Main rule 1. The insurer is liable up to the sum insured for loss caused by any one casualty. The insurer is also liable up to an equivalent amount for the costs of measures taken to avert or minimise loss arising in connection with the casualty. If the costs of such measures exceed that amount, the hull insurer is also liable to the extent that the sum insured has not been exhausted by compensation paid for loss of or damage to the ship. The insurer has a separate liability in accordance with the rules contained in § 13-3 and § 14-1 for liability to third parties which is a result of collision or striking. CICG § 32. Principal rule The Insurer shall be liable for loss caused by any one casualty up to the sum insured. § 33. Liability in excess of the sum insured Even when the sum insured is exceeded, the Insurer shall be liable for: 1. Losses as specified in §§ 39 to 43.
Here: the general rules, i.e. perils insured against and causation Losses under the presentation of the particular branches
General regulation; The perils Causation Special branches = Losses covered
§ 2-8. Perils covered by an insurance against marine perils An insurance against marine perils covers all perils to which the interest may be exposed, with the exception of: (a) the perils covered by an insurance against war perils in accordance with § 2-9, (b) intervention by a State power. A State power is understood to mean individuals or organisations exercising public or supranational authority. Measures taken by a State power for the purpose of averting or limiting damage shall not be regarded as an intervention, provided that the risk of such damage is caused by a peril covered by the insurance against marine perils, (c) insolvency, perils covered by the RACE II clause: (1) ionising radiations from or contamination by radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel, (2) the radioactive, toxic, explosive or other hazardous or contaminating properties of any nuclear installation, reactor or other nuclear assembly or nuclear component thereof, (3) any weapon or device employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter, (4) the radioactive, toxic, explosive or other hazardous or contaminating properties of any radioactive matter. The exclusion in this sub-clause does not extend to radioactive isotopes, other than nuclear fuel, when such isotopes are being prepared, carried, stored, or used for commercial, agricultural, medical, scientific or other similar peaceful purposes. (5) any chemical, biological, bio-chemical, or electromagnetic weapon.
NB ENDRET CICG special clauses Strikes, sabotage, acts of terrorism, etc. This insurance covers loss of or damage to goods when the loss or damage is caused by persons participating in protest actions, riots, strikes, lockout, sabotage, acts of terrorism or similar occurrences. § 2-9. Perils covered by an insurance against war perils (a) war or war-like conditions, or the use of arms or other implements of war in the course of military exercises in peacetime or in guarding against infringements of neutrality, (b)capture at sea, condemnation in prize, confiscation and other similar interventions by a foreign State power. Foreign State power is understood to mean any State power other than the State power in the ship’s State of registration or in the State where the major ownership interests are located, as well as organisations and individuals who unlawfully purport to exercise public or supranational authority. Requisition for ownership or use by a State power shall not be regarded as an intervention, (c)riots, strikes, lockouts, sabotage, acts of terrorism and the like, (d) piracy and mutiny, (e) measures taken by a State power to avert or limit damage, provided that the risk of such damage is caused by a peril referred to in letters (a) - (d).
NMIP § 2-13. Combination of perils If the loss has been caused by a combination of different perils, and one or more of these perils are not covered by the insurance, the loss shall be apportioned over the individual perils according to the influence each of them must be assumed to have had on the occurrence and extent of the loss, and the insurer shall only be liable for that part of the loss which is attributable to the perils covered by the insurance. CICG § 20. Combination of risks If the loss has been caused by a combination of several different risks, and one or more of these risks are not covered by this insurance, the loss shall be apportioned proportionally among the various risks according to the influence which each of them must be assumed to have had on the occurrence and extent of the loss, and the Insurer shall only be liable for that part of the loss which is attributable to the risks covered by this insurance.
§ 2-14. Combination of marine and war perils If the loss has been caused by a combination of marine perils, cf. § 2-8, and war perils, cf. § 2-9, the whole loss shall be deemed to have been caused by the class of perils which was the dominant cause. If neither of the classes of perils is considered dominant, both shall be deemed to have had equal influence on the occurrence and extent of the loss.
The examples. The ship in dry dock – fire starts on new years eve – the fire reaches the ship 1 january Or the port freezes in december but no ice damage on the ship until January
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