Abstract
The paper deals with a complete analysis of the liability of the insurer in the international carriage of goods. The paper lays down the international instruments that govern the field and to what extent they affect the liability of the insurer. The paper also analyzes the conflict of laws issues related to the international insurance. The paper further does a study of the concepts related to the international insurance of carriage of goods and liability of the insurer. The focus has been on the common law principles. Aim and Objectives The paper analyzes the extent of liability of the insurance company. It would give a critical analysis of the liability and limitation of liability of the insurance company under different heads. The paper has targeted different instruments like international conventions, municipal laws and most importantly principles of common law on this subject. Scope: Due to the paucity of time and space the researchers have limited the scope of the paper to the liability of insurance company in general sense. There is also a lacuna in International Law on this particular aspect of insurer’s liability thus more attention is paid to common law principles and the Marine Insurance Act, 1906. The author has referred to case laws from different jurisdictions to give a wider prospective but has not done a comparative study of different legal regimes. PROBLEM STATEMENT: The International legal existing setup is not in itself equipped to deal with issues in determining the liability of the insurance company for the transport of international goods when the ship sank for a reason beyond the control of the captain. RESEARCH Methodology: The methodology adopted in the research for this paper involves a thorough reading and analysis of the liability of insurer in the international carriage of goods. The study is thus based primarily on a doctrinal-qualitative approach. Based on the research, co-relations have been drawn with the position of the law in other jurisdictions. DOI: 10.7176/IAGS/92-03 Publication date: December 31 st 2021
Highlights
A person, in his normal course of life, is fundamentally exposed to unlimited perils to his interests
In broad prospective the jurisdictional issue is dealt under following heads: Brussels Convention 8 for members of European Union, Lugano Convention9 for members of European Free Trade Association (EFTA) and common law principles for the rest
None of the above instruments speak anything specific about the liability if the insurer or how the contract of insurance has to be made or executed. The limitation in these studies done by the UNCTAD is that they only concern the developing economies and not the others, the problem of uniformity remains unsolved. This is the reason that people are pointing towards developing a international regime that can bring in uniformity into the insurance filed, as cargo or marine insurance is truly international in nature, but it has to be kept in mind that any such international instrument has to be considerate and flexible to divergent economies as it will be applicable on all sorts of economies across the spectrum
Summary
A person, in his normal course of life, is fundamentally exposed to unlimited perils to his interests. IRC2 Channel J. stated that the contract of insurance have to have the payment of sum, periodical or lump sum, made by one party (policyholder) as consideration to other, and the other party in return agrees to indemnify the policyholder against any loss caused by an event that is adverse to the interest of the policyholder. It is a contract of indemnity and it is necessary to have an insurable interest in the contract otherwise the contract becomes a wagering agreement and void.. The nature of such contract is similar to other insurance contracts, with a slight divergence in the case of Marine Insurance (the most important type of insurance in international carriage of goods is marine insurance)
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