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Marine insurance

"policy" (ss.15, 51). Insurance is not, as Arnould puts it, an "incident of the property insured."

     Normally, however, a contract to sell insured goods contains an express or implied condition that the seller assign the insurance th the buyer. In modern practice, the assignment is carried out by indorsing the policy in blank and delivering it to the buyer. Section 50 allows the assignee of the policy to sue in his own name. The consent of the insurer is not necessary for an assignment. As already observed, the relationship between the insurer and the assignee is not one of utmost good faith. The policy can be assigned after a loss. An insurance policy is not a negotiable instrument.

     When insured goods are sold and the policy is assigned to the buyer, the buyer is entitled, in case of loss, to claim the full value of the insurance even if the cargo was sold  at a price lower than the value insured. The seller cannot claim the difference between the insurance the difference between the insurance money and the purchase price. The buyer, on the other hand, cannot claim the benefit of an insurance on "increased value" which the seller concludes as his own speculation and which he would not be bound to transfer to the buyer under the contract of sale.

Risks covered and risks not covered ("exclusions")

The word "warranty" is used, in marine insurance, in a contradictory and confusing manner. "First, it is used to denote a condition to the fulfilled by the assured. Secondly, it is used to denote a mere limitation on, or exception from, the general words of the policy."

    The first type of warranty is known as promissory warranty. These warranties are promises by the assured that certain facts exist; they take the following form:

  (warranted professionally packed,

  (or

  (warranted no iron one.

  (or

  (that the adventure insured is a lawful one.

    They are, in general legal terminology, conditions which, if not exactly complied with, whether material to the risk or not, entitle the insurer to disclaim liability from the date of their breach. For example, in a situation where the carrying the vessel was "warranted German FOM"(flag, ownership, management) the insurer was discharged from liability as the vessel was not in fact in German ownership, the criterion of nationality being held, on the facts, to be decisive.

Where a promissory warranty is broken, in English law the insurer may refuse to pay the insurance sum even if the breach of "condition" does not cause the loss suffered by the insurer.

    The second type of warranty is entirely different. It is known as an exceptive warranty, by which the insurer obtains exemption from liability in the indicated circumstances. These warranties are expressed by the words " warranted free..."; that means that the risk is not covered; e.g. the clause:

  (warranted free of loss or damage caused by strikers, locked-out workmen or persons taking part in labour disturbances, riots or civil commotion"

 means that the insurer is not liable for any loss due to these causes.

    The difference between "warranted" and "warranted free" is of fundamental importance for an exporter who wishes to obtain a clear idea of the protection which the policy  provides for his shipments. In practice this confusing antiquated terminology is usually avoided and it is stated that specified risks are covered and others are not covered. This terminology is used in the Institute Cargo Clauses A, B and C, where the section dealing with risks not covered is headed "Exclusions.“

The Lloyd’s Marine Policy and the institute Cargo Clauses A, B and C

19-018

The form of policy is the Lloyd’s S.G. Policy, appended as a model form to the Marine Insurance Act 1906. This policy was adopted in 1779 and was a revision of earlier forms. It defied attempts to render it into a more modern and comprehensible form. The meaning of individual clauses had to be sought in numerous decisions of the courts over the two centuries during which it was in use. The existence of the guidelines to redrafting the policy. Eventually change resulted from the strong criticism of the policy by the United Nations Commission on Trade and Development.

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