This fifth volume in the series comprises ten contributions written by an expert team of academics and practitioners. Collectively they analyse and expound many of the contemporary legal issues and debates in the law and practice of marine insurance. The new volume is not to be considered as a "new edition" superseding the earlier volumes. To the contrary, it extends on the previous coverage and contributes to the expanding coverage of the series. It achieves this by introducing new topics for analysis and by noting significant developments in themes considered in earlier volumes, thereby providing a useful tool for keeping abreast of an ever developing body of judicial law.
This volume tackles topics such as the impact of the Insurance Act 2015 on remedies and the pre-contractual duty of insurers, as well as a contribution from Professor Wilhelmsen on the state ship arrest as a peril under the Nordic Marine Insurance Plan and London terms. It explores the impact of Brexit on jurisdiction in marine insurance whilst also dedicating time to the comparison of US and English law relating to the duties of brokers, and analyses the "but for" test in marine insurance as well as historical development of the law relating to fraudulent claims. Alongside many other important topics, this book meticulously examines Direct and Third-Party claims against P & I Insurers, Passenger liabilities and class actions, Seaworthiness and the operation of the MIA 1906 s.39 post Insurance Act 2015 and the insuring of autonomous and remote-controlled vessels.
This book is essential reading for maritime lawyers, brokers and insurance market practitioners, academics, and companies associated with the marine insurance markets worldwide.
Author(s): D. Rhidian Thomas
Series: Maritime and Transport Law Library
Publisher: Routledge/Informa Law
Year: 2023
Language: English
Pages: 366
City: London
Cover
Half Title
Series Page
Title Page
Copyright Page
Table of Contents
Detailed Contents
Table of Cases
Table of Legislation
Authors’ Biographies
Foreword
Preface
Chapter 1 Maritime class actions, litigation funding, and the role of after-the-event (ATE) insurance
Introduction
Maritime class actions
Litigation funding
The role of ATE insurance
Security for costs
Recovery of an ATE premium on settlement or judgment
Conclusion
Chapter 2 Insuring remote-controlled and autonomous shipping: A paradigm shift in law and insurance markets required?
Introduction
Insurability issue
Autonomous shipping and fundamental insurance law principles
Issues concerning good faith
Issues concerning seaworthiness
Issues concerning legality
The need to realign insurance cover
The current state of play
Emergence of new risks
Design and programming errors
Dealing with RCCs
Cyber risks
Residual insurance-related issues
Potential impact of any change in liability regime
Claim handling
Development of usage-based insurance
Concluding remarks
Chapter 3 Direct and third-party claims against P&I Clubs
Introduction to P&I Clubs and insurance
Direct claims against Clubs
The claim
Obligations of a member prior to making a claim against the Club
(i) Obligation to give notice and provide information of an incident out of which a claim may arise
(ii) Obligation to notify managers of information, documents or reports relevant to the incident
(iii) Obligation to notify Club of claims made arising out of an incident
Consequences of breach of obligation
Club as dominus litis
(i) Obligation of a member not to settle or make admissions
(ii) The Managers also retain sweeping managerial and controlling powers under the Rules
Claiming against the Club
The claims process
Time limit for making claims
Consequences of breach
Resolution of disputes
Introduction
Adjudication by Directors
Reference to arbitration
Relation of the two procedures
Third-party direct rights of action
Introduction
Third Parties (Rights against Insurers) Act 2010 (as amended)
International maritime liability conventions
Foreign law
Conclusion
Chapter 4 Neither fish nor flesh nor good red herring: A comparative study of the law relating to marine insurance brokers
Introduction
The broker’s duty to the assured
England and Wales
General
Chains of brokers
Australia
USA
Conflicts of interest and disclosure of the broker’s commission
Payment of the premium
Conclusion
Chapter 5 The development of the law of remedies for an unfair presentation of the risk
Introduction
The remedies for breach of the duty of utmost good faith at common law
Avoidance for breach of the duty of utmost good faith
Avoidance as a discretionary remedy
Damages for breach of the duty of utmost good faith
Damages based on other causes of action
Deceit
Damages for a duty of care
Damages under the Misrepresentation Act 1967
Remedies introduced by the Insurance Act 2015
Insurance as a contract of utmost good faith
The new remedies
The future development of the duty and the remedies
Conclusion
Chapter 6 Insurers and the law of fraud: A success story and the case for regulatory intervention
Introduction
The English law of fraudulent insurance claims
From substance to procedure
Auxiliary remedies
Regulation
Policymaking
Analysis: The case for legislative and regulatory intervention, with recommendations
Conclusion
Chapter 7 Implied marine warranties and the Insurance Act 2015
Early express warranties
Seaworthiness
Voyage policies
Time policies
Legality
The Marine Insurance Act 1906
The codification
Seaworthiness
Legality
The Insurance Act 2015
Statutory provisions
Seaworthiness
The implied warranty of legality
Conclusion
Chapter 8 The proximate causes of loss
Introduction
Terminology
Is the word ‘proximate’ misleading?
Search for the proximate cause
The legal context and its common sense
Unless otherwise agreed
The “but for” test
Where do concurrent causes sit?
Conclusion
Chapter 9 Marine insurance cover for detainment of vessels by a foreign state: The Team Tango case
Introduction and overview
The Nordic Marine Insurance Plan 2013
The NP regulation of detainment by foreign state
The Team Tango case
The factual background and main submissions
The legal starting points
The security situation in Nigeria
Elephant’s import of urea
The assessment of the concrete reason for the arrest of the vessel
The Team Tango case as a question of causation
Problem and overview
Is an intervention by a state a peril or an insured event?
The regulation of combination of perils
Was the detainment caused by a war peril or a marine peril?
Was the total loss caused by a marine peril?
The UK clauses on arrest or detainment of vessels
Some reflections
Chapter 10 Jurisdictional rules and anti-suit injunctions post-Brexit: Uncertainties and opportunities
Introduction
Jurisdiction in relation to marine insurance matters
The basic principle: Jurisdiction as a function of service of the claim form
The effect of a jurisdiction agreement in favour of the English Court
Is the claim caught by a jurisdiction agreement?
Seeking a stay despite a jurisdiction agreement in favour of the English courts
Hague Convention: Conditions for application
Incorporation of a jurisdiction agreement contained in a separate contract
Other factors relevant to determining the proper forum
Anti-suit injunctions post-Brexit
Anti-suit injunctions post-Brexit
Litigation brought in breach of an exclusive jurisdiction or arbitration agreement
“Quasi-contractual” anti-suit injunctions
Derived right obligations
Inconsistent contractual claims
Damages for breach of a quasi-contractual obligation
Conclusion
Appendices
Insurance Act 2015
Marine Insurance Act 1906
Third Parties (Rights against Insurers) Act 2010
Index
