国际海上货物运输保险-讲义

CHAPTER 3 INTERNATIONAL MARINE INSURANCE

第三章国际海上货物运输保险法

[Aims and Requirements] This chapter is aimed to help the students to have a basic knowledge concerning the international marine insurance, including the conclusion of contract, principles of insurance, insurance policy, liabilities of the insurer and marine insurance clauses.

Section A. Contract of Marine Insurance

第一节海上保险合同

[Main Content]

I. Contract of Marine Insurance

A contract of marine insurance is a contract whereby the insurer undertakes, as agreed, to indemnify the loss to the subject matter insured and the liability of the insured caused by perils covered by the insurance against the payment of an insurance premium by the insured.

II. Certain Terminologies

1. Insurer (underwriter)

2. Insured

3. Insurable Interest

4. Applicant for Insurance

5. Subject-matter insured

6. Insurance accident

7. Insured amount

III. Basic Principles of Marine Insurance

1. Principle of Insurable Interest

(1) The meaning of insurable interest

An insurable interest refers to the interest which the applicant has in the subject matter of the insurance and is recognized by laws. The subject matter of the insurance refers to either to the property of the insured and related interests associated therewith, or to the life and body of the insured, which is the object of the insurance.

(2) The significance of insurable interest

2. Principle of Utmost Good Faith

(1) The Meaning of utmost good faith

A positive duty to voluntarily disclose, actually and fully, all facts material to the risk being proposed, whether asked for them or not

Insurance Law: “any insurance activity shall be in conformity with laws and administrative regulations and shall be conducted voluntarily under the principle of utmost good faith”.

(2) Representations and warranties

(3) Breach of the doctrine of Utmost Good Faith

3. Principle of Indemnity

(1) The meaning of Indemnity

“Indemnity can be defined as exact financial compens ation. It is sufficient to place the insured in the same financial position after a loss as he can enjoy the benefit before it occurs.”

In other words, when claims occur in property insurance, the insurer will pay the claims to the insured if the damage or loss is covered by the policy conditions.

(2) Measurement of indemnity

(3) Factors limiting the payment of indemnity

4. Principle of Proximate Cause

(1) The Meaning of proximate cause

“Proximate cause is an active and efficient cause that sets a trai n of events in motion and brings about a result. If there are several causes operating simultaneously, the proximate one will be the dominant or the most forceful one operating to bring a result.

(2) Occurrence of trains of event

(3) How do we determine the efficient cause?

IV. The Conclusion of Marine Insurance Contract

V. Insurance Policy

1. Function of the Policy

2. Assignment of the Policy

3. Floating Policy & Open Cover

[Key Points and Difficult Points]

1. Insurable Interest

2. Utmost Good Faith

3. Open Cover

[Questions]

1. Describe different types of insurable interests.

2. What is utmost good faith?

3. What are the functions of Policy?

Section B. Obligation of the Insurer and Insured

第二节保险人与被保险人的义务

[Main Content]

I. Obligations of the Insured

1. The insured shall pay the premium immediately upon conclusion of the contract.

2. The insured shall notify the insurer in writing immediately where the insured has not complied with the warranties under the contract.

3. Upon the occurrence of the peril insured against, the insured shall notify the insurer immediately and shall take necessary and reasonable measures to avoid or minimize the loss.

II. Liability of the Insurer

1. The insurer is responsible for the issue of insurance policy.

2. The insurer shall indemnify the insured promptly after the loss from a peril insured against has occurred.

3. But the insurer is not liable for the loss or damage rising from any of the following causes:

(1) Delay in the voyage or in the delivery of cargo or change of market price;

(2) Fair wear and tear, inherent vice or nature of the cargo;

(3) Improper packing.

III. Perils under Marine Insurance

1. Natural calamities

Such as weather, thunder and lighting, tidal wave, earthquake, floods, etc.

2. Fortuitous accidents

Such as ship stranded, striking upon the rocks, ship sinking, ship collision, colliding with icebergs, fire, explosion, etc.

3. Extraneous risks

This cover theft, rain, shortage, leakage, breakage, dampness, etc. They may include special risks, such as war risks, strikes, non-delivery of cargo, refusal t receive cargo, etc.

IV. Losses covered by Marine Insurance

1. Total loss

(1) Actual total loss

(2)Constructive total loss

2. Partial loss

(1) General Average

(2) Particular Average

[Key Points and Difficult Points]

1. Obligations of the insured

2. Liability of the insurer

3. Constructive total loss

4. General Average

5. Abandonment

[Questions]

1. What is abandonment? Does the insurer have the obligation to accept abandonment?

2. What are the differences between actual total loss and constructive total loss?

3. What does General Average refer to? Please give an example.

Section C Marine Insurance Clauses

第三节海上保险合同条款

[Main Content]

I. Marine Insurance Clauses

1. London Institute Cargo Clause (ICC)

(1) Institute Cargo Clause A

(2) Institute Cargo Clause B

(3) Institute Cargo Clause C

EXCLUSIONS

2. PICC Ocean Marine Cargo Clauses

According to the stipulat ions of the People’s Insurance Company of China, the following basic insurance covers are available in marine insurance:

(1) Free From Particular Average (FPA)

Under FPA the insurance company will be resposible to pay claims for total or constructive total losses suffered by the whole lot of cargoes during transportation due to such natural calamities as vile weather, thunder and lighting, tidal wave, earthquakes, and floods, ot for total or partial losses due to the ship or carrier being on fire, stranded, sinking, colliding or meeting other fortuitous accidents.

(2) With Particular Average (WA)

The cover of this insurance is more extensive. The insurer is liable, in addition to the total or constructive total losses covered by FPA insurance, also for the partial losses of the insured goods due to the risks caused by natural calamities not mentioned under FPA.

(3) All Risks

Under an “all risks” policy the goods are insured against all risks, e.g. from natural calamities, fortuitous accidents at sea, or general extraneous risks, irrespective of percentage of loss, total or partial. A natural deterioration of perishable goods, delay, loss or damage caused by inherent vice nature of the subject matter are not covered.

EXCLUSIONS

PICC Cargo Clauses do not cover:

(1) Loss or damage caused by the intentional act or fault of the Insured.

(2) Loss or damage falling under the liability of the consignor.

(3) Loss or damage arising from the inferior quality or shortage of the insured goods prior to the attachment of this insurance.

(4) Loss or damage arising from normal loss, inherent vice or nature of the insured goods, loss of market and/or delay in transit and any expenses arising therefrom.

(5) Risks and liabilities covered and excluded by the Ocean Marine Cargo War Risks Clauses and Strike, Riot and Civil Commotion Clauses.

3. War Risks Clause & Strike Risks Clause

(1)Institute Cargo Clause－War

(2) Strike Clause

II. Commencement and Termination of Cover (warehouse to warehouse) seagoing vessel at the final port of discharge before they reach the above mentioned warehouse or place of storage. If prior to the expiry of the above mentioned sixty (60) days, the insured goods are to be forwarded to a destination other than that named in the Policy, this insurance shall terminate at the commencement of such transit.

[Key Points and Difficult Points]

1. FPA

2. WA

3. All Risks

[Questions]

1. When will the Cover be terminated?

2. What is Free From Particular Average?