Marine Insurance Law Research Articles

Liability and Insurance in Maritime Autonomous Surface Ship (MASS) under the UK Legal System - The impact of new technologies and the interpretation thereof -

Emergence of new technologies in relation to a navigation of a vessel, from manned to unmanned status, will bring about fundamental changes to the traditional legal paradigm, which was established based on the presumption of human existence on board of a vessel. Similar changes are witnessed regarding motor vehicles and aircraft, but the unique nature of maritime affairs requires an independent analysis. This paper takes a particular interest in AI and cyber security in MASS and how the new technologies will likely be impacting the liability and marine insurance regime under the UK legal system. After a brief analysis of how UK laws and courts look at autonomous motor vehicles and aircrafts as a comparison, the introduction for Automated and Electric Vehicles Act 2018, a new legislation to regulate the UK motor insurance for automated vehicles, will follow. Liability issues in relation to AI under the UK legal system is addressed based on the analysis of the legal status of AI, with suggestions to bridge the gaps during the transitional period of this paradigm shift. Finally, as marine insurance is often times the name of the game in maritime affairs and marine casualties, the interpretation of current marine insurance law to be applicable to AI and cyber security is suggested. In short, the purpose of this paper was to comprehensively address the areas where the new technology would potentially have an impact on the MASS and what the issues would likely be from the UK legal perspective.

미국 해상보험법상 연방법과 주법의 적용에 대한 구조적 문제점에 관한 고찰

Purpose : The purpose of this study analyses the structural issues in the application of Federal and State laws in the US Marine Insurance Law. Research design, data and methodology : The methodology is a typical case law analysis dealing with the issues surrounding the selection of the applicable law for marine insurance contracts as the issues implied by the US Marine Insurance Law. Results : In Travelers v. Ocean Reef, the 11th Circuit Federal Court of Appeals stated that only the Supreme Court had the privilege of overturning its decision and, unlike some commentators, could not dismiss Wilburn Boat on the grounds that it might disagree with Wilburn Boat. In Travelers v. Ocean Reef, will prove fascinating enough to tell you what the Supreme Court thinks about Wilburn Boat today. Conclusions : Considering the possibility that the law of the United States, which is popularly referred to as a major power in litigation, will affect Korea's trade officials, it is even more so. In addition, although the problem of the marine insurance law in the United States is recognized as a domestic problem, it should be recognized that the effect of opacity of the law and the diversification of legal principles is international.

SOUTH AFRICAN MARINE INSURANCE LAW: THE CURRENT STATE OF OUR DRAFT MARINE INSURANCE BILL AND THE EFFECT OF ITS PROMULGATION ON THE SOUTH AFRICAN MARINE INSURANCE INDUSTRY

In 1997 a draft proposal for a Marine Insurance Act was prepared as a new South African statute in response to a call for the development of marine insurance by legal practitioners, academics, various members of the Maritime Law Association and other members of various Marine Underwriting bodies (the draft bill was redrafted in 1997 by its main draftsman Adv Douglas Shaw QC). The draft legislation, tends to adopt the form and structure of the English Marine Insurance Act 1906 (6 Edw 7c 41), with minor differences. For instance, in keeping with the South African law on insurance, the draft Act excludes the English law concept “uberrima fides”, which has been rejected as an alien concept under South African insurance law. It is essential for legislature to review the status of the bill as marine insurance forms the oldest part of our well established maritime economy. Developments in marine insurance laws will enable South Africa to participate more meaningfully from a legislative point of view in the international arena. The draft bill is a useful tool in determining the probable future direction of the developments in South African marine insurance, however, this draft legislation has not been promulgated. It is possible to underestimate the usefulness of such a code since ten years have passed since the bill’s last re-draft. It is proposed in this article that there is a need for codified South African Marine Insurance Law and that perhaps the legislature should reopen the debate on the bill and consider it in order to hasten the process of its promulgation. Further, if such a statute is developed it must be unique to South Africa in that it must reflect a balance between the modern Roman-Dutch law as applied by our courts in marine insurance matters while useful English law concepts are also reflected for the purposes of international uniformity. However, if capturing such a dichotomy in the draft bill proves to be against international marine insurance trends, perhaps the best way forward is to promulgate the existing draft Act as is. What must be achieved in the end is that South African Marine Insurance Law must lose its legal research status of being the “Cinderella” of all insurances and have positive laws that govern it specifically in the form of a South African Marine Insurance Act.

영국 해상보험법의 몇 가지 문제에 대한 고찰 - 대법원 2017. 6. 19. 선고 2016다270407 판결 -

영국법이 해상보험계약의 준거법인 경우, 해상고유의 위험을 원인으로 보험보상을 청구하는 원고가 해상고유의 위험의 존재사실에 대한 증명책임을 부담한다. 따라서 원고는, 사고가 ① “해상에서만(of the seas)” 발생하는 위험으로서, ② 우연성을 갖추고 있다는 사실을 증명하여야 한다. 나아가 원고는 손해의 발생사실 및 인과관계에 관해서도 소위 ‘prima facie case’라고 볼 수 있을 정도로 증명을 하여야 하며, 원고가 이와 같은 정도의 증명을 다하지 못한 경우 보험자는 별도의 항변을 할 필요도 없다. 한편 손해가 해상고유의 위험으로 인해 발생하였는지 여부가 원고의 주장과 증명에도 불구하고 명확하지 않을 경우, 해상고유의 위험의 부존재 등을 누구의 불이익으로 돌릴 것인가 하는 문제, 즉 증명책임의 소재 및 그 증명의 정도의 문제가 발생한다. 다만 소송실무적 측면에서 증명책임의 분배기준에 관해서는 우리 민사소송법과 영국법의 입장이 크게 다르지 않다는 점에서, 어느 나라의 법에 따라 소송당사자 사이에 증명책임을 분배하더라도 결론이 다르지 않을 것으로 보인다. 그러나 계약의 준거법이 영국법인 경우에도, 소송상 증명의 정도의 법적 성질은 절차법적 문제로 볼 수 있다는 점에서, 증명의 정도에 관한 준거법이 무엇인지는 실무상 중요한 문제이다. 일련의 해상보험사건에서 대법원은 별도의 설명 없이 증명의 정도에 대해, 영국법에 따라 ‘증거의 우월(preponderance of evidence)’에 의한 증명원칙을 적용하고 있다. 그러나 민사소송상 증명의 정도를 절차법적 문제로 파악한다면, 증명의 정도에 관해서는 우리 민사소송법을 적용해야 할 것이다.

The Utmost Good Faith in Maritime Insurance: The Nature

The Marine Insurance Act 2015 (UK) marked the start of a contemporary period for insurance law because the Act improved the regime for the duty of good faith by transitioning to the duty of fair presentation from traditional doctrines of utmost good faith in the Marine Insurance Act 1906 in the UK. While the obligation of utmost good faith made up the firm cornerstone of insurance law in the past, it has not been an extensive and all-encompassing duty because the nature of uberrimae fidei in insurance contracts has already changed lately. This essay introduces briefly the evolution of uberrimae fidei in marine insurance law and analyses the nature and its dilemma. By comparing the relationship between good faith and the utmost good faith, upon further analysis, the reason why the obligation needs current reform is the downturn of international trade from the macro-level perspective. Moreover, from the micro-level perspective, legal requirements between the subjective state of the insured and the duty of the “fair presentation” are radically different. All in all, though the utmost good faith laid a solid foundation on insurance law, the “fair presentation” in the 2015 Act is more obviously applicable to counterpoise the benefits of the insurer and the insured, which is regarded as insurance relationships’ fresh core. Therefore, nowadays this reform is a success on a fair and reasonable legal basis, and it reduces insurance obligations of the insured traditionally to boost the prosperity of the marine insurance business currently.

Study on Revision of Disclosure Obligation Under Marine Insurance Clauses in Chinese Maritime Law

Since implemented on July 1, 1993, the Maritime Code of the People's Republic of China has played an irreplaceable role in adjusting the legal relationship in maritime commerce. In recent years, great changes have taken place in the practice of international shipping. To further meet the practical needs of international shipping and judicial practice, the revision of the Maritime Code of the People's Republic of China (for short is CMC) has been put on the agenda officially. The obligation of disclosure occupies an important position in the entire marine insurance legal system, and has continuously changed and evolved over hundreds of years. As the birthplace of marine insurance law, the United Kingdom passed a new insurance law in 2015, named as Insurance Act (IA2015), abolishing the unlimited notification mode for the insured existed for more than 100 years, and introducing a fair presentation obligation and related relief mechanism, which can be described as a revolutionary measure. At present, China's marine insurance is booming, and marine insurance activities need to be guided by accurate, mature and complete legal provisions. Research on the reform of the disclosure obligation model combined with the development of the British insurance law, clarifying its connotation and specific content is helpful to promote relevant adaptation in China, and has important theoretical significance and practical value for revising relevant sections of CMC.

Jonathan Gilman, Mark Templeman, Claire Blanchard, Philippa Hopkins and Neil Hart (eds), Arnould's Law of Marine Insurance and Average

Jonathan Gilman, Mark Templeman, Claire Blanchard, Philippa Hopkins and Neil Hart (eds), <i>Arnould's Law of Marine Insurance and Average</i>

Malice in Marine Insurance Law: Navigators Insurance Company Limited and others v Atlasnavios-Navegacao LDA (formerly Bnavios-Navegacao LDA) [2018] UKSC 26

Malice in Marine Insurance Law: Navigators Insurance Company Limited and others v Atlasnavios-Navegacao LDA (formerly Bnavios-Navegacao LDA) [2018] UKSC 26

Inchmaree Clause as an Additional Perils Clause in Marine Insurance Law

In marine insurance, the assured may expand the coverage of insurance by paying additional premium, unless otherwise stated, if the policy includes the Inchmaree clause, as the clause is known as an additional perils clause. On the other hand, if loss of or damage to a vessel is suffered from want of due diligence of assured, shipowners or managers, the insurer could be discharged from liability. In addition, if the assured has undertaken warranty under insurance contract, then the tension between this warranty and clause might be arisen. As such, courts might confront the question as to which provision (the warranty or clause) should be applied or superseded. The article tries to explain key elements of the Inchmaree clause and deal with interrelation between warranties undertaken upon seaworthiness of a vessel and the clause included into the policy to expand the coverage of insurance.

The Choice of Law Issues in Marine Insurance Disputes Resolution in Indonesia

Marine insurance business in Indonesia such as marine hull and machinery insurance and cargo insurance are subject to applicable laws and practices in the United Kingdom. Although Indonesia already has marine insurance law which is regulated in Wetboek van Koophandel, in fact, this business subject to English Law and Practice. The choice of law is listed in the insurance policy. Submission of the law and practice in the UK raises the issue for the parties in the insurance contract, between Insurer and Insured. Although the principle of the contract is a law for those who make it, in practice, there is a problem. The problem is especially when there is a dispute between Insurer and Insured. When disputes occur, each party has a different opinion regarding which country's laws may be applied to resolve disputes between Insurance Companies and Policyholders (the proper law of the contract, the applicable law). When referring to the provisions contained in the marine insurance policy which is a contract of the parties, it should be settled under the legal system and the practice of law which is in force in the United Kingdom, because the choice of law is written in the contract. However, the problem arises again, whether the choice of law in the insurance contract can be applied, if the insurance company as a legal entity is established under Indonesian law and domiciled in Indonesia, as well as the policyholders who are Indonesian. On the basis of such matters, this paper intended to elaborate the principles of international civil law in Indonesia regarding the choice of law in the contract and is also associated with the personal status of the insurance company, the personal status of the policyholder who are Indonesian, as well as the consequences of the choice of law listed in marine hull and machinery insurance or cargo insurance and national laws which can be applied to marine insurance disputes occurring in Indonesia. Keywords: Marine Insurance, Choice of Law

Piracy in light of marine insurance law with a view of ransom payments

After the 2008 Somali attacks, piracy has gained significant popularity among scholars. However, despite lots of ongoing debates and written papers in the last decade, some crucial issues have been left unresolved, starting from the definition of piracy. When discussing piracy within the context of marine insurance, certain specific characteristics of marine insurance law should be taken into consideration. Namely, international law definition, criminal law definition and other definitions of piracy cannot properly satisfy the need of marine insurance law. After the proper understanding of piracy within marine insurance law is determined, there are some other important issues that need to be discussed. Certainly, one is categorization of piracy as a peril. Question whether piracy is a marine peril or a war peril? Further on, one of the most discussed issue of modern piracy are ransom payments. Can they even be considered legal? If yes, are they recoverable from marine insurers and on which basis? Answers to previously mentioned questions will be given in the following paper.

‘Inherent vice’: marine insurance, slave ship rebellion and the law

Reparations activism has forced many large multinational insurance corporations to disclose their early profiteering from underwriting slavery and the slave trade. This paper further contributes to the reparative project of tracing slavery’s occluded legacies by analysing aspects of the development of British, French and American marine insurance law in response to shipboard rebellion in the transatlantic slave trade, and the American ‘domestic’ maritime slave trade. It explores the ways in which marine insurance developed and adapted its ancient legal concepts – notably, the concept of ‘inherent vice’ – to the requirements of commodifying life for the purposes of modern slave trading. This history further illuminates the conceptual lineaments and practices that were involved in the slave trade’s processes of dehumanisation but it also highlights the ways in which marine insurance lawyers, in the face of shipboard rebellion, were compelled to debate not only the humanity of the enslaved but their desire for freedom. In this context, the archive of marine insurance offers an unexpected route into the history of resistance to slavery.

米国海上保険法の構造的問題

米国海上保険法の構造的問題

British Postal PacketHanover, 1757: a legal history

The wrecking of the Falmouth Postal Packet Hanover in 1763 led to three legal disputes and two court cases—in 1766 and 1997. This article recounts the origins and course of these disputes. It examines what the resolution of the 18th-century case and the second dispute has revealed of the law and practice of marine insurance in the mid 18th century. It further examines what the 20th-century case has revealed concerning the tension between ancient principles of commercial salvage and modern principles of heritage protection. Somewhat fortuitously, the examination of the case provides an opportunity to advance a simple solution to this conflict.

海上保険におけるPiratesおよびPiracyの解釈について

海上保険におけるPiratesおよびPiracyの解釈について

Total losses and the peril of piracy in English law of marine insurance

Abstract Whereas the Marine Insurance Act 1906 provides substantial detail about total losses, very little is provided in relation to piracy in the said statute. The recent judgments in Masefield v Amlin by Steel J ([2010] 1Lloyd's Rep. IR 345) and then by the English Court of Appeal ([2011] EWCA Civ 24) have highlighted the difficulties associated with determining whether a seizure of the subject-matter of insurance, in this case cargo, by pirates, demanding a ransom, can give rise to a claim for a total loss. This is a very important matter which also raises issues of legality and public policy. This article examines the implications of this judgment against the backdrop of the English marine insurance definition of piracy and the intricacies of the law relating to constructive and actual total losses. The article concludes with the suggestion that possibly the marine insurance definition of piracy should tally with that in the domain of public international law, and further, that legislative intervention should be considered for the purpose of ascertaining the point in time whether and when seizure by pirates can constitute a total loss.

A Study on the Interest Relationship in Marine Insurance Law in the Electronic Trading Environment

A Study on the Interest Relationship in Marine Insurance Law in the Electronic Trading Environment

A Study on Issues and Tasks of the Duty of Utmost Good Faith in English Marine Insurance Law

A Study on Issues and Tasks of the Duty of Utmost Good Faith in English Marine Insurance Law

Abandon jako instytucja morskiego prawa ubezpieczeniowego Wybrane aspekty prawnoporównawcze

The purpose of this paper is to introduce the issue of abandonment (referred in Poland as “ abandon ” ) in Polish Maritime Code and also in Russian, French and UK legislation. First part opens with overall remarks on marine insurance law as well as abandonment and its functions. Next the author focuses on problems of actual total loss (ATL) and constructive total loss (CTL). Redundant legislative approaches towards defi nitions and purposes of ATL and CTL are presented. This part additionally includes examples of ATL and CTL defi nitions used by major Polish insurance companies in their standard terms of insurance. Further the author sets out a range of situations in which insured party may give notice of abandonment (like e.g. when a ship is lost without any trace). It is followed by a detailed introduction of the notice of abandonment itself (conditions, form, terms, possibility of withdrawal etc.). Acceptance of abandonment by insurer and its legal consequences precede the conclusions of the paper. The main conclusion made by the author is that despite various diff erences in Polish, French, Russian and UK legislation, the essence of abandonment is common to all described legal systems – compensation of a loss that occurs in extraordinary circumstances. Normal 0 21 false false false PL X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Standardowy; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:Times New Roman,serif;}

The perils of the sea, proximity and seaworthiness: The loss of the Marina Iris

This paper considers recent case law that adds to the understanding of a much debated and litigated issue within the field of marine insurance law. The issue is about determining the proximate cause of loss of a ship. The essential question is whether the loss was due to the perils of the sea or due to the unseaworthiness of the vessel. The 2006 Marina Iris decision of the Singapore Court of Appeal determined there was a loss due to the perils of the sea. This paper examines the legal position regarding perils v unseaworthiness from an historical perspective and the impact of the Marina Iris decision.