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An Act to codify the Law relating to Marine
Insurance [21st December 1906]
Marine
Insurance
1. Marine
insurance defined
2. Mixed sea and
land risks
3. Marine
adventure and maritime perils defined
Insurable
Interest
4. Avoidance of
wagering or gaming contracts
5. Insurable
interest defined
6. When interest
must attach
7. Defeasible or
contingent interest
8. Partial
interest
9. Re-insurance
10. Bottomry
11. Master's and
seamen's wages
12. Advance
freight
13. Charges of
insurance
14. Quantum of
interest
15. Assignment of
interest
16. Measure of
insurable value
Disclosure and
Representations
17. Insurance is
uberrimae fidei
18. Disclosure by
assured
19. Disclosure by
agent effecting insurance
20.
Representations pending negotiation of contract
21.
When contract is deemed to be concluded
The
Policy
22.
Contract must be embodied in policy
23.
What policy must specify
24.
Signature of insurer
25.
Voyage and time policies
26.
Designation of subject-matter
27.
Valued policy
28.
Unvalued policy
29.
Floating policy by ship or ships
30.
Construction of terms in policy
31.
Premium to be arranged
Double
Insurance
32.
Double insurance
Warranties,
&C.
33.
Nature of warranty
34.
When breach of warranty excused
35.
Express warranties
36.
Warranty of neutrality
37.
No implied warranty of nationality
38.
Warranty of good safety
39.
Warranty of seaworthiness of ship
40.
No implied warranty that goods are seaworthy
41.
Warranty of legality
The
Voyage
42.
Implied condition as to commencement of risk
43.
Alteration of port of departure
44.
Sailing for different destination
45.
Change of voyage
46.
Deviation
47.
Several ports of discharge
48.
49.
Assignment
of Policy
50.
When and how policy is assignable
51.
Assured who has no interest cannot assign
The
Premium
52.
When premium payable
53.
Policy effected through broker
54.
Effect of receipt on policy
Loss
And Abandonment
55.
Included and excluded losses
56.
Partial and total loss
57.
Actual total loss
58.
Missing ship
59.
Effect of transhipment, &c.
60.
Constructive total loss defined
61.
Effect of constructive total loss
62.
Notice of abandonment
63.
Effect of abandonment
Partial
Losses (Including Salvage and General Average and
Particular Charges)
64.
Particular average loss
65.
Salvage charges
66.
General average loss
Measure
Of Indemnity
67.
Extent of liability of insurer for loss
68.
Total loss
69.
Partial loss of ship
70.
Partial loss of freight
71.
Partial loss of goods, merchandise, &c.
72.
Apportionment of valuation
73.
General average contributions and salvage charges
74.
Liabilities to third parties
75.
General provisions as to measure of indemnity
76.
Particular average warranties
77.
Successive losses
78.
Suing and labouring clause
Rights
Of Insurer On Payment
79.
Right of subrogation
80.
Right of contribution
81.
Effect of under insurance
Return
Of Premium
82.
Enforcement of return
83.
Return by agreement
84.
Return for failure of consideration
Mutual
Insurance
85.
Modification of Act in case of mutual insurance
Supplemental
86.
Ratification by assured
87.
Implied obligations varied by agreement or usage
88.
Reasonable time, &c. a question of fact
89.
Slip as evidence
90.
Interpretation of terms
91.
Savings
92.
[repealed by the Statute Law Rivision Act 1927]
93.
[repealed by the Statute Law Rivision Act 1927]
94.
[repealed by the Statute Law Rivision Act 1927]
SCHEDULES
First
Schedule
Form
Of Policy
Rules
For Construction Of Policy
Second
Schedule - [This Schedule was repealed by the Statute
Law Revision 1927]
Marine
Insurance
1.
Marine insurance defined
A
contract of marine insurance is a contract
whereby the insurer undertakes to indemnify the
assured, in manner and to the extent thereby
agreed, against marine losses, that is to say,
the losses incident to marine adventure.
2.
Mixed sea and land risks
(1)
A contract of marine insurance may, by its
express terms, or by usage of trade, be extended
so as to protect the assured against losses on
inland waters or on any land risk which may be
incidental to any sea voyage.
(2)
Where a ship in course of building, or the
launch of a ship, or any adventure analogous to
a marine adventure, is covered by a policy in
the form of a marine policy, the provisions of
this Act, in so far as applicable, shall apply
thereto, but, except as by this section
provided, nothing in this Act shall alter or
affect any rule of law applicable to any
contract of insurance other than a contract of
marine insurance as by this Act defined.
3.
Marine adventure and maritime perils defined
(1)
Subject to the provisions of this Act, every
lawful marine adventure may be the subject of a
contract of marine insurance.
(2)
In particular there is a marine adventure where
-
(a)
Any ship goods or other moveables are exposed to
maritime perils. Such property is in this Act
referred to as "insurable property";
(b)
The earning or acquisition of any freight,
passage money, commission, profit, or other
pecuniary benefit, or the security for any
advances, loan, or disbursements, is endangered
by the exposure of insurable property to
maritime perils;
(c)
Any liability to a third party may be incurred
by the owner of, or other person interested in
or responsible for, insurable property, by
reason of maritime perils.
"Maritime
perils" means the perils consequent on, or
incidental to, the navigation of the sea, that
is to say, perils of the seas, fire, war,
perils, pirates, rovers, thieves, captures,
seizures, restraints, and detainment's of
princes and peoples, jettisons, barratry, and
any other perils, either of the like kind or
which may be designated by the policy.
Insurable
Interest
4.
Avoidance of wagering or gaming contracts
(1)
Every contract of marine insurance by way of
gaming or wagering is void.
(2)
A contract of marine insurance is deemed to be a
gaming or wagering contract--
(a)
Where the assured has not an insurable interest
as defined by this Act, and the contract is
entered into with no expectation of acquiring
such an interest; or
(b)
Where the policy is made 'interest or no
interest,' or 'without further proof of interest
than the policy itself.' or 'without benefit of
salvage to the insurer,' or subject to any other
like term:
Provided
that, where there is no possibility of salvage,
a policy may be effected without benefit of
salvage to the insurer.
5.
Insurable interest defined
(1)
Subject to the provisions of this Act, every
person has an insurable interest who is
interested in a marine adventure.
(2)
In particular a person is interested in a marine
adventure where he stands in any legal or
equitable relation to the adventure or to any
insurable property at risk therein, in
consequence of which he may benefit by the
safety or due arrival of insurable property, or
may be prejudiced by its loss, or by damage
thereto, or by the detention thereof, or may
incur liability in respect thereof.
6.
When interest must attach
(1)
The assured must be interested in the
subject-matter insured at the time of the loss
though he need not be interested when the
insurance is effected: Provided that where the
subject-matter is insured 'lost or not lost,'
the assured may recover although he may not have
acquired his interest until after the loss,
unless at the time of effecting the contract of
insurance the assured was aware of the loss, and
the insurer was not.
(2)
Where the assured has no interest at the time of
the loss, he cannot acquire interest by any act
or election after he is aware of the loss.
7.
Defeasible or contingent interest
(1)
A defeasible interest is insurable, as also is a
contingent interest.
(2)
In particular, where the buyer of goods has
insured them, he has an insurable interest,
notwithstanding that he might, at his election,
have rejected the goods, or have treated them as
at the seller's risk, by reason of the latter's
delay in making delivery or otherwise.
8.
Partial interest
A
partial interest of any nature is insurable.
9.
Re-insurance
(1)
The insurer under a contract of marine insurance
has an insurable interest in his risk, and may
re-insure in respect of it.
(2)
Unless the policy otherwise provides, the
original assured has no right or interest in
respect of such re-insurance.
10.
Bottomry
The
lender of money on bottomry or respondentia has
an insurable interest in respect of the loan.
11.
Master's and seamen's wages
The
master or any member of the crew of a ship has
an insurable interest in respect of his wages.
12.
Advance freight
In
the case of advance freight, the person
advancing the freight has an insurable interest,
in so far as such freight is not repayable in
case of loss.
13.
Charges of insurance
The
assured has an insurable interest in the charges
of any insurance which he may effect.
14.
Quantum of interest
(1)
Where the subject-matter insured is mortgaged,
the mortgagor has an insurable interest in the
full value thereof, and the mortgagee has an
insurable interest in respect of any sum due or
to become due under the mortgage.
(2)
A mortgagee, consignee, or other person having
an interest in the subject-matter insured may
insure on behalf and for the benefit of other
persons interested as well as for his own
benefit.
(3)
The owner of insurable property has an insurable
interest in respect of the full value thereof,
notwithstanding that some third person may have
agreed, or be liable, to indemnify him in case
of loss.
15.
Assignment of interest
Where
the assured assigns or otherwise parts with his
interest in the subject-matter insured, he does
not thereby transfer to the assignee his rights
under the contract of insurance, unless there be
an express or implied agreement with the
assignee to that effect. But the provisions of
this section do not affect a transmission of
interest by operation of law.
16.
Measure of insurable value
Subject
to any express provision or valuation in the
policy, the insurable value of the
subject-matter insured must be ascertained as
follows:
(1)
In insurance on ship, the insurable value is the
value, at the commencement of the risk, of the
ship, including her outfit, provisions and
stores for the officers and crew, money advanced
for seamen's wages, and other disbursements (if
any) incurred to make the ship fit for the
voyage or adventure contemplated by the policy,
plus the charges of insurance upon the whole:
The insurable value, in the case of a steamship,
includes also the machinery, boilers, and coals
and engine stores if owned by the assured, and,
in the case of a ship engaged in a special
trade, the ordinary fittings requisite for that
trade:
(2)
In insurance on freight, whether paid in advance
or otherwise, the insurable value is the gross
amount of the freight at the risk of the
assured, plus the charges of insurance:
(3)
In insurance on goods or merchandise, the
insurable value is the prime cost of the
property insured, plus the expenses of and
incidental to shipping and the charges of
insurance upon the whole:
(4)
In insurance on any other subject-matter, the
insurable value is the amount at the risk of the
assured when the policy attaches, plus the
charges of insurance.
Disclosure
and Representations
17.
Insurance is uberrimae fidei
A
contract of marine insurance is a contract based
upon the utmost good faith, and, if the utmost
good faith be not observed by either party, the
contract may be avoided by the other party.
18.
Disclosure by assured
(1)
Subject to the provisions of this section, the
assured must disclose to the insurer, before the
contract is concluded, every material
circumstance which is known to the assured, and
the assured is deemed to know every circumstance
which, in the ordinary course of business, ought
to be known by him. If the assured fails to make
such disclosure, the insurer may avoid the
contract.
(2)
Every circumstance is material which would
influence the judgment of a prudent insurer in
fixing the premium, or determining whether he
will take the risk.
(3)
In the absence of inquiry the following
circumstances need not be disclosed, namely:
(a)
Any circumstance which diminishes the risk:
(b)
Any circumstance which is known or presumed to
be known to the insurer. The insurer is presumed
to know matters of common notoriety or
knowledge, and matters which an insurer in the
ordinary course of his business, as such, ought
to know;
(c)
Any circumstances as to which information is
waived by the insurer;
(d)
Any circumstance which it is superfluous to
disclose by reason of any express or implied
warranty.
(4)
Whether any particular circumstance, which is
not disclosed, be material or not is, in each
case, a question of fact.
(5)
The term 'circumstance' includes any
communication made to, or information received
by, the assured.
19.
Disclosure by agent effecting insurance
Subject
to the provisions of the preceding section as to
circumstances which need not be disclosed, where
an insurance is effected for the assured by an
agent, the agent must disclose to the insurer--
(a)
Every material circumstance which is known to
himself, and an agent to insure is deemed to
know every circumstance which in the ordinary
course of business ought to be known by, or to
have been communicated to, him; and
(b)
Every material circumstance which the assured is
bound to disclose, unless it come to his
knowledge too late to communicate it to the
agent.
20.
Representations pending negotiation of contract
(1)
Every material representation made by the
assured or his agent to the insurer during the
negotiations for the contract, and before the
contract is concluded, must be true. If it be
untrue the insurer may avoid the contract.
(2)
A representation is material which would
influence the judgment of a prudent insurer in
fixing the premium, or determining whether he
will take the risk.
(3)
A representation may be either a representation
as to a matter of fact, or as to a matter of
expectation or belief.
(4)
A representation as to a matter of fact is true,
if it be substantially correct, that is to say,
if the difference between what is represented
and what is actually correct would not be
considered material by a prudent insurer
(5)
A representation as to a matter of expectation
or belief is true if it be made in good faith.
(6)
A representation may be withdrawn or corrected
before the contract is concluded.
(7)
Whether a particular representation be material
or not is, in each case, a question of fact.
21.
When contract is deemed to be concluded
A
contract of marine insurance is deemed to be
concluded when the proposal of the assured is
accepted by the insurer, whether the policy be
then issued or not; and, for the purpose of
showing when the proposal was accepted,
reference may be made to the slip or covering
note or other customary memorandum of the
contract.
The
Policy
22.
Contract must be embodied in policy
Subject
to the provisions of any statute, a contract of
marine insurance is inadmissible in evidence
unless it is embodied in a marine policy in
accordance with this Act. The policy may be
executed and issued either at the time when the
contract is concluded, or afterwards
23.
What policy must specify
A
marine policy must specify -
(1)
The name of the assured, or of some person who
effects the insurance on his behalf:
(2)-(5)
[Repealed].
24.
Signature of insurer
(1)
A marine policy must be signed by or on behalf
of the insurer, provided that in the case of a
corporation the corporate seal may be
sufficient, but nothing in this section shall be
construed as requiring the subscription of a
corporation to be under seal.
(2)
Where a policy is subscribed by or on behalf of
two or more insurers, each subscription, unless
the contrary be expressed, constitutes a
distinct contract with the assured.
25.
Voyage and time policies
(1)
Where the contract is to insure the
subject-matter 'at and from,' or from one place
to another or other, the policy is called a
'voyage policy,' and where the contract is to
insure the subject-matter for a definite period
of time the policy is called a 'time policy.' A
contract for both voyage and time may be
included in the same policy.
(2)
[Repealed].
26.
Designation of subject-matter
(1)
The subject-matter insured must be designated in
a marine policy with reasonable certainty.
(2)
The nature and extent of the interest of the
assured in the subject-matter insured need not
be specified in the policy.
(3)
Where the policy designates the subject-matter
insured in general terms, its shall be construed
to apply to the interest intended by the assured
to be covered.
(4)
In the application of this section regard shall
be had to any usage regulating the designation
of the subject-matter insured.
27.
Valued policy
(1)
A policy may be either valued or unvalued.
(2)
A valued policy is a policy which specifies the
agreed value of the subject-matter insured.
(3)
Subject to the provisions of this Act, and in
the absence of fraud, the value fixed by the
policy is, as between the insurer and assured,
conclusive of the insurable value of the subject
intended to be insured, whether the loss be
total or partial.
(4)
Unless the policy otherwise provides, the value
fixed by the policy is not conclusive for the
purpose of determining whether there has been a
constructive total loss.
28.
Unvalued policy
An
unvalued policy is a policy which does not
specify the value of the subject-matter insured,
but subject to the limit of the sum insured,
leaves the insurable value to be subsequently
ascertained, in the manner herein-before
specified.
29.
Floating policy by ship or ships
(1)
A floating policy is a policy which describes
the insurance in general terms, and leaves the
name of the ship or ships and other particulars
to be defined by subsequent declaration.
(2)
The subsequent declaration or declarations may
be made by indorsement on the policy, or in
other customary manner.
(3)
Unless the policy otherwise provides, the
declarations must be made in the order of
dispatch or shipment. They must, in the case of
goods, comprise all consignments within the
terms of the policy, and the value of the goods
or other property must be honestly stated, but
an omission or erroneous declaration may be
rectified even after loss or arrival, provided
the omission or declaration was made in good
faith.
(4)
Unless the policy otherwise provides, where a
declaration of value is not made until after
notice of loss or arrival, the policy must be
treated as an unvalued policy as regards the
subject-matter of that declaration.
30.
Construction of terms in policy
(1)
A policy may be in the form in the First
Schedule to this Act.
(2)
Subject to the provisions of this Act, and
unless the context of the policy otherwise
requires, the terms and expressions mentioned in
the First Schedule to this Act shall be
construed as having the scope and meaning in
that schedule assigned to them.
31.
Premium to be arranged
(1)
Where an insurance is effected at a premium to
be arranged, and no arrangement is made, a
reasonable premium is payable.
(2)
Where an insurance is effected on the terms that
an additional premium is to be arranged in a
given event, and that event happens but no
arrangement is made, then a reasonable
additional premium is payable.
Double
Insurance
32.
Double insurance
(1)
Where two or more policies are effected by or on
behalf of the assured on the same adventure and
interest or any part thereof, and the sums
insured exceed the indemnity allowed by this
Act, the assured is said to be over-insured by
double insurance.
(2)
Where the assured is over-insured by double
insurance--
(a)
The assured, unless the policy otherwise
provides, may claim payment from the insurers in
such order as he may think fit, provided that he
is not entitled to receive any sum in excess of
the indemnity allowed by this Act;
(b)
Where the policy under which the assured claims
is a valued policy, the assured must give credit
as against the valuation for any sum received by
him under any other policy without regard to the
actual value of the subject-matter insured;
(c)
Where the policy under which the assured claims
is an unvalued policy he must give credit, as
against the full insurable value, for any sum
received by him under any other policy;
(d)
Where the assured receives any sum in excess of
the indemnity allowed by this Act, he is deemed
to hold such sum in trust for the insurers,
according to their right of contribution among
themselves.
Warranties,
&C.
33.
Nature of warranty
(1)
A warranty, in the following sections relating
to warranties, means a promissory warranty, that
is to say, a warranty by which the assured
undertakes that some particular thing shall or
shall not be done, or that some condition shall
be fulfilled, or whereby he affirms or negatives
the existence of a particular state of facts.
(2)
A warranty may be express or implied.
(3)
A warranty, as above defined, is a condition
which must be exactly complied with, whether it
be material to the risk or not. If it be not so
complied with, then, subject to any express
provision in the policy, the insurer is
discharged from liability as from the date of
the breach of warranty, but without prejudice to
any liability incurred by him before that date.
34.
When breach of warranty excused
(1)
Non-compliance with a warranty is excused when
by reason of a change of circumstances, the
warranty ceases to be applicable to the
circumstances of the contract, or when
compliance with the warranty is rendered
unlawful by any subsequent law.
(2)
Where a warranty is broken, the assured cannot
avail himself of the defence that the breach has
been remedied, and the warranty complied with,
before loss.
(3)
A breach of warranty may be waived by the
insurer.
35.
Express warranties
(1)
An express warranty may be in any form of words
from which the intention to warrant is to be
inferred.
(2)
An express warranty must be included in, or
written upon, the policy, or must be contained
in some document incorporated by reference into
the policy.
(3)
An express warranty does not exclude an implied
warranty, unless it be inconsistent therewith.
36.
Warranty of neutrality
(1)
Where insurable property, whether ship or goods,
is expressly warranted neutral, there is an
implied condition that the property shall have a
neutral character at the commencement of the
risk, and that, so far as the assured can
control the matter, its neutral character shall
be preserved during the risk.
(2)
Where a ship is expressly warranted 'neutral'
there is also an implied condition that, so far
as the assured can control the matter she shall
be properly documented, that is to say, that she
shall carry the necessary papers to establish
her neutrality, and that she shall not falsify
or suppress her papers, or use simulated papers.
If any loss occurs through breach of this
condition, the insurer may avoid the contract.
37.
No implied warranty of nationality
There
is no implied warranty as to the nationality of
a ship, or that her nationality shall not be
changed during the risk.
38.
Warranty of good safety
Where
the subject-matter insured is warranted 'well'
or 'in good safety' on a particular day, it is
sufficient if it be safe at any time during that
day.
39.
Warranty of seaworthiness of ship
(1)
In a voyage policy there is an implied warranty
that at the commencement of the voyage the ship
shall be seaworthy for the purpose of the
particular adventure insured.
(2)
Where the policy attaches while the ship is in
port, there is also an implied warranty that she
shall, at the commencement of the risk, be
reasonably fit to encounter the ordinary perils
of the port.
(3)
Where the policy relates to a voyage which is
performed in different stages, during which the
ship requires different kinds of or further
preparation or equipment, there is an implied
warranty that at the commencement of each stage
the ship is seaworthy in respect of such
preparation or equipment for the purposes of
that stage.
(4)
A ship is deemed to be seaworthy when she is
reasonably fit in all respects to encounter the
ordinary perils of the seas of the adventure
insured.
(5)
In a time policy there is no implied warranty
that the ship shall be seaworthy at any stage of
the adventure, but where, with the privity of
the assured, the ship is sent to sea in an
unseaworthy state, the insurer is not liable for
any loss attributable to unseaworthiness.
40.
No implied warranty that goods are seaworthy
(1)
In a policy on goods or other moveables there is
no implied warranty that the goods or moveables
are seaworthy.
(2)
In a voyage policy on goods or other moveables
there is an implied warranty that at the
commencement of the voyage the ship is not only
seaworthy as a ship, but also that she is
reasonably fit to carry the goods or other
moveables to the destination contemplated by the
policy.
41.
Warranty of legality
There
is an implied warranty that the adventure
insured is a lawful one, and that, so far as the
assured can control the matter, the adventure
shall be carried out in a lawful manner.
The
Voyage
42.
Implied condition as to commencement of risk
(1)
Where the subject-matter is insured by a voyage
policy 'at and from' or 'from' a particular
place, it is not necessary that the ship should
be at that place when the contract is concluded,
but there is an implied condition that the
adventure shall be commenced within a reasonable
time, and that if the adventure be not so
commenced the insurer may avoid the contract.
(2)
The implied condition may be negatived by
showing that the delay was caused by
circumstances known to the insurer before the
contract was concluded, or by showing that he
waived the condition.
43.
Alteration of port of departure
Where
the place of departure is specified by the
policy, and the ship instead of sailing from
that place sails from any other place, the risk
does not attach.
44.
Sailing for different destination
Where
the destination is specified in the policy, and
the ship, instead of sailing for that
destination, sails for any other destination,
the risk does not attach.
45.
Change of voyage
(1)
Where, after the commencement of the risk, the
destination of the ship is voluntarily changed
from the destination contemplated by the policy,
there is said to be a change of voyage.
(2)
Unless the policy otherwise provides, where
there is a change of voyage, the insurer is
discharged from liability as from the time of
change, that is to say, as from the time when
the determination to change it is manifested;
and it is immaterial that the ship may not in
fact have left the course of voyage contemplated
by the policy when the loss occurs.
46.
Deviation
(1)
Where a ship, without lawful excuse, deviates
from the voyage contemplated by the policy, the
insurer is discharged from liability as from the
time of deviation, and it is immaterial that the
ship may have regained her route before any loss
occurs.
(2)
There is a deviation from the voyage
contemplated by the policy--
(a)
Where the course of the voyage is specifically
designated by the policy, and that course is
departed from; or
(b)
Where the course of the voyage is not
specifically designated by the policy, but the
usual and customary course is departed from.
(3)
The intention to deviate is immaterial; there
must be a deviation in fact to discharge the
insurer from his liability under the contract.
47.
Several ports of discharge
(1)
Where several ports of discharge are specified
by the policy, the ship may proceed to all or
any of them, but, in the absence of any usage or
sufficient cause to the contrary, she must
proceed to them, or such of them as she goes to,
in the order designated by the policy. If she
does not there is a deviation.
(2)
Where the policy is to 'ports of discharge,'
within a given area, which are not named, the
ship must, in the absence of any usage or
sufficient cause to the contrary, proceed to
them, or such of them as she goes to, in their
geographical order. If she does not there is a
deviation.
48.
In
the case of a voyage policy, the adventure
insured must be prosecuted throughout its course
with reasonable dispatch, and, if without lawful
excuse it is not so prosecuted, the insurer is
discharged from liability as from the time when
the delay became unreasonable.
49.
(1)
Deviation or delay in prosecuting the voyage
contemplated by the policy is excused--
(a)
Where authorised by any special term in the
policy; or
(b)
Where caused by circumstances beyond the control
of the master and his employer; or
(c)
Where reasonably necessary in order to comply
with an express or implied warranty; or
(d)
Where reasonably necessary for the safety of the
ship or subject-matter insured; or
(e)
for the purpose of saving human life, or aiding
a ship in distress where human life may be in
danger; or
(f)
Where reasonably necessary for the purpose of
obtaining medical or surgical aid for any person
on board the ship; or
(g)
Where caused by the barratrous conduct of the
master or crew, if barratry be one of the perils
insured against.
(2)
When the cause excusing the deviation or delay
ceases to operate, the ship must resume her
course, and prosecute her voyage, with
reasonable dispatch.
Assignment
of Policy
50.
When and how policy is assignable
(1)
A marine policy is assignable unless it contains
terms expressly prohibiting assignment. It may
be assigned either before or after loss.
(2)
Where a marine policy has been assigned so as to
pass the beneficial interest in such policy, the
assignee of the policy is entitled to sue
thereon in his own name; and the defendant is
entitled to make any defence arising out of the
contract which he would have been entitled to
make if the action had been brought in the name
of the person by or on behalf of whom the policy
was effected.
51.
Assured who has no interest cannot assign
Where
the assured has parted with or lost his interest
in the subject-matter insured, and has not,
before or at the time of so doing, expressly or
impliedly agreed to assign the policy, any
subsequent assignment of the policy is
inoperative: Provided that nothing in this
section affects the assignment of a policy after
loss.
The
Premium
52.
When premium payable
Unless
otherwise agreed, the duty of the assured or his
agent to pay the premium, and the duty of the
insurer to issue the policy to the assured or
his agent, are concurrent conditions, and the
insurer is not bound to issue the policy until
payment or tender of the premium.
53.
Policy effected through broker
(1)
Unless otherwise agreed, where a marine policy
is effected on behalf of the assured by a
broker, the broker is directly responsible to
the insurer for the premium, and the insurer is
directly responsible to the assured for the
amount which may be payable in respect of
losses, or in respect of returnable premium.
(2)
Unless otherwise agreed, the broker has, as
against the assured, a lien upon the policy for
the amount of the premium and his charges in
respect of effecting the policy; and, where he
has dealt with the person who employs him as a
principal, he has also a lien on the policy in
respect of any balance on any insurance account
which may be due to him from such person, unless
when the debt was incurred he had reason to
believe that such person was only an agent.
54.
Effect of receipt on policy
Where
a marine policy effected on behalf of the
assured by a broker acknowledges the receipt of
the premium, such acknowledgement is, in the
absence of fraud, conclusive as between the
insurer and the assured, but not as between the
insurer and broker.
Loss
And Abandonment
55.
Included and excluded losses
(1)
Subject to the provisions of this Act, and
unless the policy otherwise provides, the
insurer is liable for any loss proximately
caused by a peril insured against, but, subject
as aforesaid, he is not liable for any loss
which is not proximately caused by a peril
insured against.
(2)
In particular -
(a)
The insurer is not liable for any loss
attributable to the wilful misconduct of the
assured, but, unless the policy otherwise
provides, he is liable for any loss proximately
caused by a peril insured against, even though
the loss would not have happened but for the
misconduct or negligence of the master or crew;
(b)
Unless the policy otherwise provides, the
insurer on ship or goods is not liable for any
loss proximately caused by delay, although the
delay be caused by a peril insured against;
(c)
Unless the policy otherwise provides, the
insurer is not liable for ordinary wear and
tear, ordinary leakage and breakage, inherent
vice or nature of the subject-matter insured, or
for any loss proximately caused by rats or
vermin, or for any injury to machinery not
proximately caused by maritime perils.
56.
Partial and total loss
(1)
A loss may be either total or partial. Any loss
other than a total loss, as hereinafter defined,
is a partial loss.
(2)
A total loss may be either an actual total loss,
or a constructive total loss.
(3)
Unless a different intention appears from the
terms of the policy, an insurance against total
loss includes a constructive, as well as an
actual, total loss.
(4)
Where the assured brings an action for a total
loss and the evidence proves only a partial
loss, he may, unless the policy otherwise
provides, recover for a partial loss.
(5)
Where goods reach their destination in specie,
but by reason of obliteration of marks, or
otherwise, they are incapable of identification,
the loss, if any, is partial, and not total.
57.
Actual total loss
(1)
Where the subject-matter insured is destroyed,
or so damaged as to cease to be a thing of the
kind insured, or where the assured is
irretrievably deprived thereof, there is an
actual total loss.
(2)
In the case of an actual total loss no notice of
abandonment need be given.
58.
Missing ship
Where
the ship concerned in the adventure is missing,
and after the lapse of a reasonable time no news
of her has been received, an actual total loss
may be presumed.
59.
Effect of transhipment, &c.
Where,
by a peril insured against, the voyage is
interrupted at an intermediate port or place,
under such circumstances as, apart from any
special stipulation in the contract of
affreightment, to justify the master in landing
and reshipping the goods or other moveables, or
in transhipping them, and sending them on to
their destination, the liability of the insurer
continues, notwithstanding the landing or
transhipment.
60.
Constructive total loss defined
(1)
Subject to any express provision in the policy,
there is a constructive total loss where the
subject-matter insured is reasonably abandoned
on account of its actual total loss appearing to
be unavoidable, or because it could not be
preserved from actual total loss without an
expenditure which would exceed its value when
the expenditure had been incurred.
(2)
In particular, there is a constructive total
loss--
(i)
Where the assured is deprived of the possession
of his ship or goods by a peril insured against,
and
(a)
it is unlikely that he can recover the ship or
goods, as the case may be, or
(b)
the cost of recovering the ship or goods, as the
case may be, would exceed their value when
recovered; or
(ii)
In the case of damage to a ship, where she is so
damaged by a peril insured against that the cost
of repairing the damage would exceed the value
of the ship when repaired. In estimating the
cost of repairs, no deduction is to be made in
respect of general average contributions to
those repairs payable by other interests, but
account is to be taken of the expense of future
salvage operations and of any future general
average contributions to which the ship would be
liable if repaired; or
(iii)
In the case of damage to goods, where the cost
of repairing the damage and forwarding the goods
to their destination would exceed their value on
arrival.
61.
Effect of constructive total loss
Where
there is a constructive total loss the assured
may either treat the loss as a partial loss, or
abandon the subject-matter insured to the
insurer and treat the loss as if it were an
actual total loss.
62.
Notice of abandonment
(1)
Subject to the provisions of this section, where
the assured elects to abandon the subject-matter
insured to the insurer, he must give notice of
abandonment. If he fails to do so the loss can
only be treated as a partial loss.
(2)
Notice of abandonment may be given in writing,
or by word of mouth, or partly in writing and
partly by word of mouth, and may be given in any
terms which indicate the intention of the
assured to abandon his insured interest in the
subject-matter insured unconditionally to the
insurer.
(3)
Notice of abandonment must be given with
reasonable diligence after the receipt of
reliable information of the loss, but where the
information is of a doubtful character the
assured is entitled to a reasonable time to make
inquiry.
(4)
Where notice of abandonment is properly given,
the rights of the assured are not prejudiced by
the fact that the insurer refuses to accept the
abandonment.
(5)
The acceptance of an abandonment may be either
express or implied from the conduct of the
insurer. The mere silence of the insurer after
notice is not acceptance.
(6)
Where notice of abandonment is accepted the
abandonment is irrevocable. The acceptance of
the notice conclusively admits liability for the
loss and the sufficiency of the notice.
(7)
Notice of abandonment is unnecessary where, at
the time when the assured receives information
of the loss, there would be no possibility of
benefit to the insurer if notice were given to
him.
(8)
Notice of abandonment may be waived by the
insurer.
(9)
Where an insurer has re-insured his risk, no
notice of abandonment need by given by him.
63.
Effect of abandonment
(1)
Where there is a valid abandonment the insurer
is entitled to take over the interest of the
assured in whatever may remain of the
subject-matter insured, and all proprietary
rights incidental thereto.
(2)
Upon the abandonment of a ship, the insurer
thereof is entitled to any freight in course of
being earned, and which is earned by her
subsequent to the casualty causing the loss,
less the expenses of earning it incurred after
the casualty; and, where the ship is carrying
the owner's goods, the insurer is entitled to a
reasonable remuneration for the carriage of them
subsequent to the casualty causing the loss.
Partial
Losses (Including Salvage and General Average
and Particular Charges)
64.
Particular average loss
(1)
A particular average loss is a partial loss of
the subject-matter insured, caused by a peril
insured against, and which is not a general
average loss.
(2)
Expenses incurred by or on behalf of the assured
for the safety or preservation of the
subject-matter insured, other than general
average and salvage charges, are called
particular charges. Particular charges are not
included in particular average.
65.
Salvage charges
(1)
Subject to any express provision in the policy,
salvage charges incurred in preventing a loss by
perils insured against may be recovered as a
loss by those perils.
(2)
'Salvage charges' means the charges recoverable
under maritime law by a salvor independently of
contract. They do not include the expenses of
services in the nature of salvage rendered by
the assured or his agents, or any person
employed for hire by them, for the purpose of
averting a peril insured against. Such expenses,
where properly incurred, may be recovered as
particular charges or as a general average loss,
according to the circumstances under which they
were incurred.
66.
General average loss
(1)
A general average loss is a loss caused by or
directly consequential on a general average act.
It includes a general average expenditure as
well as a general average sacrifice.
(2)
There is a general average act where any
extraordinary sacrifice or expenditure is
voluntarily and reasonably made or incurred in
time of peril for the purpose of preserving the
property imperilled in the common adventure.
(3)
Where there is a general average loss, the party
on whom it falls is entitled, subject to the
conditions imposed by maritime law, to a
rateable contribution from the other parties
interested, and such contribution is called a
general average contribution.
(4)
Subject to any express provision in the policy,
where the assured has incurred a general average
expenditure, he may recover from the insurer in
respect of the proportion of the loss which
falls upon him; and, in the case of a general
average sacrifice, he may recover from the
insurer in respect of the whole loss without
having enforced his right of contribution from
the other parties liable to contribute.
(5)
Subject to any express provision in the policy,
where the assured has paid, or is liable to pay,
a general average contribution in respect of the
subject insured, he may recover therefor from
the insurer.
(6)
In the absence of express stipulation, the
insurer is not liable for any general average
loss or contribution where the loss was not
incurred for the purpose of avoiding, or in
connection with the avoidance of, a peril
insured against.
(7)
Where ship, freight, and cargo, or any two of
those interests, are owned by the same assured,
the liability of the insurer in respect of
general average losses or contributions is to be
determined as if those subjects were owned by
different persons.
Measure
Of Indemnity
67.
Extent of liability of insurer for loss
(1)
The sum which the assured can recover in respect
of a loss on a policy by which he is insured, in
the case of an unvalued policy to the full
extent of the insurable value, or, in the case
of a valued policy to the full extent of the
value fixed by the policy is called the measure
of indemnity.
(2)
Where there is a loss recoverable under the
policy, the insurer, or each insurer if there be
more than one, is liable for such proportion of
the measure of indemnity as the amount of his
subscription bears to the value fixed by the
policy in the case of a valued policy, or to the
insurable value in the case of an unvalued
policy.
68.
Total loss
Subject
to the provisions of this Act and to any express
provision in the policy, where there is a total
loss of the subject-matter insured,--
(1)
If the policy be a valued policy, the measure of
indemnity is the sum fixed by the policy:
(2)
If the policy be an unvalued policy, the measure
of indemnity is the insurable value of the
subject-matter insured.
69.
Partial loss of ship
Where
a ship is damaged, but is not totally lost, the
measure of indemnity, subject to any express
provision in the policy, is as follows:
(1)
Where the ship has been repaired, the assured is
entitled to the reasonable cost of the repairs,
less the customary deductions, but not exceeding
the sum insured in respect of any one casualty:
(2)
Where the ship has been only partially repaired,
the assured is entitled to the reasonable cost
of such repairs, computed as above, and also to
be indemnified for the reasonable depreciation,
if any, arising from the unrepaired damage,
provided that the aggregate amount shall not
exceed the cost of repairing the whole damage,
computed as above:
(3)
Where the ship has not been repaired, and has
not been sold in her damaged state during the
risk, the assured is entitled to be indemnified
for the reasonable depreciation arising from the
unrepaired damage, but not exceeding the
reasonable cost of repairing such damage,
computed as above.
70.
Partial loss of freight
Subject
to any express provision in the policy, where
there is a partial loss of freight, the measure
of indemnity is such proportion of the sum fixed
by the policy in the case of a valued policy, or
of the insurable value in the case of an
unvalued policy, as the proportion of freight
lost by the assured bears to the whole freight
at the risk of the assured under the policy.
71.
Partial loss of goods, merchandise, &c.
Where
there is a partial loss of goods, merchandise or
other moveables, the measure of indemnity,
subject to any express provision in the policy,
is as follows:
(l)
Where part of the goods, merchandise or other
moveables insured by a valued policy is totally
lost, the measure of indemnity is such
proportion of the sum fixed by the policy as the
insurable value of the part lost bears to the
insurable value of the whole, ascertained as in
the case of an unvalued policy:
(2)
Where part of the goods, merchandise, or other
moveables insured by an unvalued policy is
totally lost, the measure of indemnity is the
insurable value of the part lost, ascertained as
in case of total loss:
(3)
Where the whole or any part of the goods or
merchandise insured has been delivered damaged
at its destination, the measure of indemnity is
such proportion of the sum fixed by the policy
in the case of a valued policy, or of the
insurable value in the case of an unvalued
policy, as the difference between the gross
sound and damaged valued at the place of arrival
bears to the gross sound value:
(4)
'Gross value' means the wholesale price, or, if
there be no such price, the estimated value,
with, in either case, freight, landing charges,
and duty paid beforehand; provided that, in the
case of goods or merchandise customarily sold in
bond, the bonded price is deemed to be the gross
value. 'Gross proceeds' means the actual price
obtained at a sale where all charges on sale are
paid by the sellers.
72.
Apportionment of valuation
(1)
Where different species of property are insured
under a single valuation, the valuation must be
apportioned over the different species in
proportion to their respective insurable values,
as in the case of an unvalued policy. The
insured value of any part of a species is such
proportion of the total insured value of the
same as the insurable value of the part bears to
the insurable value of the whole ascertained in
both cases as provided by this Act.
(2)
Where a valuation has to be apportioned, and
particulars of the prime cost of each separate
species, quality, or description of goods cannot
be ascertained, the division of the valuation
may be made over the net arrived sound values of
the different species, qualities, or
descriptions of goods.
73.
General average contributions and salvage
charges
(1)
Subject to any express provision in the policy,
where the assured has paid, or is liable for,
any general average contribution, the measure of
indemnity is the full amount of such
contribution, if the subject-matter liable to
contribution is insured for its full
contributory value, or if only part of it be
insured, the indemnity payable by the insurer
must be reduced in proportion to the under
insurance, and where there has been a particular
average loss which constitutes a deduction from
the contributory value, and for which the
insurer is liable, that amount must be deducted
from the insured value in order to ascertain
what the insurer is liable to contribute.
(2)
Where the insurer is liable for salvage charges
the extent of his liability must be determined
on the like principle.
74.
Liabilities to third parties
Where
the assured has effected an insurance in express
terms against any liability to a third party,
the measure of indemnity, subject to any express
provision in the policy is the amount paid or
payable by him to such third party in respect of
such liability.
75.
General provisions as to measure of indemnity
(l)
Where there has been a loss in respect of any
subject-matter not expressly provided for in the
foregoing provisions of this Act, the measure of
indemnity shall be ascertained, as nearly as may
be, in accordance with those provisions, in so
far as applicable to the particular case.
(2)
Nothing in the provisions of this Act relating
to the measure of indemnity shall affect the
rules relating to double insurance, or prohibit
the insurer from disproving interest wholly or
in part, or from showing that at the time of the
loss the whole or any part of the subject-matter
insured was not at risk under the policy.
76.
Particular average warranties
(1)
Where the subject-matter insured is warranted
free from particular average, the assured cannot
recover for a loss of part, other than a loss
incurred by a general average sacrifice, unless
the contract contained in the policy be
apportionable- but, if the contract be apportionable, the assured may recover for a
total loss of any apportionable part.
(2)
Where the subject-matter insured is warranted
free from particular average, either wholly or
under a certain percentage, the insurer is
nevertheless liable for salvage charges, and for
particular charges and other expenses properly
incurred pursuant to the provisions of the suing
and labouring clause in order to avert a loss
insured against.
(3)
Unless the policy otherwise provides, where the
subject-matter insured is warranted free from
particular average under a specified percentage,
a general average loss cannot be added to a
particular average loss to make up the specified
percentage.
(4)
For the purpose of ascertaining whether the
specified percentage has been reached, regard
shall be had only to the actual loss suffered by
the subject-matter insured. Particular charges
and the expenses of and incidental to
ascertaining and proving the loss must be
excluded.
77.
Successive losses
(1)
Unless the policy otherwise provides, and
subject to the provisions of this Act, the
insurer is liable for successive losses, even
though the total amount of such losses may
exceed the sum insured.
(2)
Where, under the same policy, a partial loss,
which has not been repaired or otherwise made
good, is followed by a total loss, the assured
can only recover in respect of the total loss:
Provided that nothing in this section shall
affect the liability of the insurer under the
suing and labouring clause.
78.
Suing and labouring clause
(1)
Where the policy contains a suing and labouring
clause, the engagement thereby entered into is
deemed to be supplementary to the contract of
insurance, and the assured may recover from the
insurer any expenses properly incurred pursuant
to the clause, notwithstanding that the insurer
may have paid for a total loss, or that the
subject-matter may have been warranted free from
particular average, either wholly or under a
certain percentage.
(2)
General average losses and contributions and
salvage charges, as defined by this Act, are not
recoverable under the suing and labouring
clause.
(3)
Expenses incurred for the purpose of averting or
diminishing any loss not covered by the policy
are not recoverable under the suing and
labouring clause.
(4)
It is the duty of the assured and his agents, in
all cases, to take such measures as may be
reasonable for the purpose of averting or
minimising a loss.
Rights
Of Insurer On Payment
79.
Right of subrogation
(1)
Where the insurer pays for a total loss, either
of the whole, or in the case of goods of any
apportionable part, of the subject-matter
insured, he thereupon becomes entitled to take
over the interest of the assured in whatever may
remain of the subject-matter so paid for, and he
is thereby subrogated to all the rights and
remedies of the assured in and in respect of
that subject-matter as from the time of the
casualty causing the loss.
(2)
Subject to the foregoing provisions, where the
insurer pays for a partial loss, he acquires no
title to the subject-matter insured, or such
part of it as may remain, but he is thereupon
subrogated to all rights and remedies of the
assured in and in respect of the subject-matter
insured as from the time of the casualty causing
the loss, in so far as the assured has been
indemnified, according to this Act, by such
payment for the loss.
80.
Right of contribution
(1)
Where the assured is over-insured by double
insurance, each insurer is bound, as between
himself and the other insurers, to contribute
rateably to the loss in proportion to the amount
for which he is liable under his contract.
(2)
If any insurer pays more than his proportion of
the loss, he is entitled to maintain an action
for contribution against the other insurers, and
is entitled to the like remedies as a surety who
has paid more than his proportion of the debt.
81.
Effect of under insurance
Where
the assured is insured for an amount less than
the insurable value or, in the case of a valued
policy, for an amount less than the policy
valuation, he is deemed to be his own insurer in
respect of the uninsured balance.
Return
Of Premium
82.
Enforcement of return
Where
the premium or a proportionate part thereof is,
by this Act, declared to be returnable,--
(a)
If already paid, it may be recovered by the
assured from the insurer; and
(b)
If unpaid, it may be retained by the assured or
his agent.
83.
Return by agreement
Where
the policy contains a stipulation for the return
of the premium, or a proportionate part thereof,
on the happening of a certain event, and that
event happens, the premium, or, as the case may
be, the proportionate part thereof, is thereupon
returnable to the assured.
84.
Return for failure of consideration
(1)
Where the consideration for the payment of the
premium totally fails, and there has been no
fraud or illegality on the part of the assured
or his agents, the premium is thereupon
returnable to the assured.
(2)
Where the consideration for the payment of the
premium is apportionable and there is a total
failure of any apportionable part of the
consideration, a proportionate part of the
premium is, under the like conditions, thereupon
returnable to the assured.
(3)
In particular -
(a)
Where the policy is void, or is avoided by the
insurer as from the commencement of the risk,
the premium is returnable, provided that there
has been no fraud or illegality on the part of
the assured; but if the risk is not
apportionable, and has once attached, the
premium is not returnable;
(b)
Where the subject-matter insured, or part
thereof, has never been imperilled, the premium,
or, as the case may be, a proportionate part
thereof, is returnable;
Provided
that where the subject-matter has been insured
'lost or not lost' and has arrived in safety at
the time when the contract is concluded, the
premium is returnable unless, at such time, the
insurer knew of the safe arrival.
(c)
Where the assured has no insurable interest
throughout the currency of the risk, the premium
is returnable, provided that this rule does not
apply to a policy effected by way of gaming or
wagering;
(d)
Where the assured has a defeasible interest
which is terminated during the currency of the
risk, the premium is not returnable;
(e)
Where the assured has over-insured under an
unvalued policy, a proportionate part of the
several premiums is returnable;
(f)
Subject to the foregoing provisions, where the
assured has overinsured by double insurance, a
proportionate part of the several premiums is
returnable;
Provided
that, if the policies are effected at different
times, and any earlier policy has at any time
borne the entire risk, or if a claim has been
paid on the policy in respect of the full sum
insured thereby, no premium is returnable in
respect of that policy, and when the double
insurance is effected knowingly by the assured
no premium is returnable.
Mutual
Insurance
85.
Modification of Act in case of mutual insurance
(1)
Where two or more persons mutually agree to
insure each other against marine losses there is
said to be a mutual insurance.
(2)
The provisions of this Act relating to the
premium do not apply to mutual insurance, but a
guarantee, or such other arrangement as may be
agreed upon, may be substituted for the premium.
(3)
The provisions of this Act, in so far as they
may be modified by the agreement of the parties,
may in the case of mutual insurance be modified
by the terms of the policies issued by the
association, or by the rules and regulations of
the association.
(4)
Subject to the exceptions mentioned in this
section, the provisions of this Act apply to a
mutual insurance.
Supplemental
86.
Ratification by assured
Where
a contract of marine insurance is in good faith
effected by one person on behalf of another, the
person on whose behalf it is effected may ratify
the contract even after he is aware of a loss.
87.
Implied obligations varied by agreement or usage
(1)
Where any right, duty, or liability would arise
under a contract of marine insurance by
implication of law, it may be negatived or
varied by express agreement, or by usage, if the
usage be such as to bind both parties to the
contract.
(2)
The provisions of this section extend to any
right, duty, or liability declared by this Act
which may be lawfully modified by agreement.
88.
Reasonable time, &c. a question of fact
Where
by this Act any reference is made to reasonable
time, reasonable premium, or reasonable
diligence, the question what is reasonable is a
question of fact.
89.
Slip as evidence
Where
there is a duly stamped policy, reference may be
made, as heretofore, to the slip or covering
note, in any legal proceeding.
90.
Interpretation of terms
In
this Act, unless the context or subject-matter
otherwise requires,- 'Action' includes
counter-claim and set off: 'Freight' includes
the profit derivable by a shipowner from the
employment of his ship to carry his own goods or
moveables, as well as freight payable by a third
party, but does not include passage money: 'Moveables'
means any moveable tangible property, other than
the ship, and includes money, valuable
securities, and other documents: 'Policy' means
a marine policy.
91.
Savings
(1)
Nothing in this Act, or in any repeal effected
thereby, shall affect -
(a)
the provisions of the Stamp Act 1891, or any
enactment for the time being in force relating
to the revenue;
(b)
the provisions of the Companies Act 1862, or any
enactment amending or substituted for the same;
(c)
the provisions of any statute not expressly
repealed by this Act.
92.
[repealed by the Statute Law Rivision Act 1927]
This
section was repealed by the Statute Law Rivision
Act 1927
93.
[repealed by the Statute Law Rivision Act 1927]
This
section was repealed by the Statute Law Rivision
Act 1927
94.
[repealed by the Statute Law Rivision Act 1927]
This
section was repealed by the Statute Law Rivision
Act 1927
SCHEDULES
First
Schedule
Form
Of Policy
Be
it known that _ as well _ in own
name as for and in the name and names of all and
every other person or persons to whom the same
doth, may, or shall appertain, in part or in all
doth make assurance and cause _ and them,
and every of them, to be insured lost or not
lost, at and from _
Upon
any kind of goods and merchandises, and also
upon the body, tackle, apparel, ordnance,
munition, artillery, boat, and other furniture,
of and in the good ship or vessel called the _
whereof
is master under God, for this present voyage, __
or whosoever else shall go for master in the
said ship, or by whatsoever other name or names
the said ship, or the master thereof, is or
shall be named or called; beginning the
adventure upon the said goods and merchandised
from the loading thereof aboard the said ship,
upon
the said ship, &c.
and
so shall continue and endure, during her abode
there, upon the said ship, &c. And further,
until the said ship, with all her ordnance,
tackle, apparel, &c., and goods and
merchandises whatsoever shall be arrived at
upon
the said ship, &c. until she hath moored at
anchor twenty-four hours in good safety, and
upon the goods and merchandises, until the same
be there discharged and safely landed. And it
shall be lawful for the said ship, &c., in
this voyage, to proceed and sail to and touch
and stay at any ports or places whatsoever
without
prejudice to this insurance. The said ship,
&c., goods and merchandises, &c., for so
much as concerns the assured by agreement
between the assured and assurers in this policy,
are and shall be valued at
Touching
the adventures and perils which we the assurers
are contented to bear and do take upon us in
this voyage: they are of the seas, men of war,
fire, enemies, pirates, rovers, thieves,
jettisons, letters of mart and countermart,
surprisals, takings at sea, arrests, restraints,
and detainments of all kings, princes, and
people, of what nation, condition, or quality
soever, barratry of the master and mariners, and
of all other perils, losses, and misfortunes,
that have or shall come to the hurt, detriment,
or damage of the said goods and merchandises,
and ship, &c., or any part thereof. And in
case of any loss or misfortune it shall be
lawful to the assured, their factors, servants
and assigns, to sue, labour, and travel for, in
and about the defence, safeguards, and recovery
of the said goods and merchandises, and ship,
&c., or any part thereof, without prejudice
to this insurance; to the charges whereof we,
the assurers, will contribute each one according
to the rate and quantity of his sum herein
assured. And it is especially declared and
agreed that no acts of the insurer or insured in
recovering, saving, or preserving the property
insured shall be considered as a waiver, or
acceptance of abandonment. And it is agreed by
us, the insurers, that this writing or policy of
assurance shall be of as much force and effect
as the surest writing or policy of assurance
heretofore made in Lombard Street, or in the
Royal Exchange, or elsewhere in London. And so
we, the assurers, are contented, and do hereby
promise and bind ourselves, each one for his own
part, our heirs, executors, and goods to the
assured, their executors, administrators, and
assigns, for the true performance of the
premises, confessing ourselves paid the
consideration due unto us for this assurance by
the assured, at and after the rate of
In
Witness whereof we, the assurers, have
subscribed our names and sums assured in London.
N.B.-
Corn, fish, salt, fruit, flour, and seed are
warranted free from average, unless general, or
the ship be stranded-sugar, tobacco, hemp, flax,
hides and skins are warranted free from average,
under five pounds per cent., and all other
goods, also the ship and freight, are warranted
free from average, under three pounds per cent.
unless general, or the ship be stranded.
Rules
For Construction Of Policy
The
following are the rules referred to by this Act
for the construction of a policy in the above or
other like form, where the context does not
otherwise require:
1.
Where the subject-matter is insured 'lost or not
lost', and the loss has occurred before the
contract is concluded, the risk attaches unless,
at such time the assured was aware of the loss,
and the insurer was not.
2.
Where the subject-matter is insured 'from' a
particular place, the risk does not attach until
the ship starts on the voyage insured.
3.--
(a)
Where a ship is insured 'at and from' a
particular place, and she is at that place in
good safety when the contract is concluded, the
risk attaches immediately.
(b)
If she be not at that place when the contract is
concluded, the risk attaches as soon as she
arrives there in good safety, and, unless the
policy otherwise provides, it is immaterial that
she is covered by another policy for a specified
time after arrival.
(c)
Where chartered freight is insured 'at and from'
a particular place, and the ship is at that
place in good safety when the contract is
concluded the risk attaches immediately. If she
be not there when the contract is concluded, the
risk attaches as soon as she arrives there in
good safety.
(d)
Where freight, other than chartered freight, is
payable without special conditions and is
insured 'at and from' a particular place, the
risk attaches pro rata as the goods or
merchandise are shipped; provided that if there
be cargo in readiness which belongs to the
shipowner, or which some other person has
contracted with him to ship, the risk attaches
as soon as the ship is ready to receive such
cargo.
4.
Where goods or other moveables are insured 'from
the loading thereof,' the risk does not attach
until such goods or moveables are actually on
board, and the insurer is not liable for them
while in transit from the shore to the ship.
5.
Where the risk on goods or other moveables
continues until they are 'safely landed,' they
must be landed in the customary manner and
within a reasonable time after arrival at the
port of discharge, and if they are not so landed
the risk ceases.
6.
In the absence of any further licence or usage,
the liberty to touch and stay 'at any port or
place whatsoever' does not authorise the ship to
depart from the course of her voyage from the
port of departure to the port of destination.
7.
The term 'perils of the seas' refers only to
fortuitous accidents or casualties of the seas.
It does not include the ordinary action of the
winds and waves.
8.
The term 'pirates' includes passengers who
mutiny and rioters who attack the ship from the
shore.
9.
The term 'thieves' does not cover clandestine
theft or a theft committed by any one of the
ship's company, whether crew or passengers.
10.
The term 'arrests, &c., of kings, princes,
and people' refers to a political or executive
acts, and does not include a loss caused by riot
or by ordinary judicial process.
11.
The term 'barratry' includes every wrongful act
wilfully committed by the master or crew to the
prejudice of the owner, or, as the case may be,
the charterer.
12.
The term 'all other perils' includes only perils
similar in kind to the perils specifically
mentioned in the policy.
13.
The term 'average unless general' means a
partial loss of subject-matter insured other
than a general average loss, and does not
include 'particular charges'.
14.
Where the ship has stranded the insurer is
liable for the excepted losses, although the
loss is not attributable to the stranding,
provided that when the stranding takes place the
risk has attached and, if the policy be on
goods, that the damaged goods are on board.
15.
The term 'ship' includes the hull, materials and
outfit, stores and provisions for the officers
and crew, and, in the case of vessels engaged in
a special trade, the ordinary fittings requisite
for the trade, and also, in the case of a
steamship, the machinery, boilers, and coals and
engine stores, if owned by the assured.
16.
The term 'freight' includes the profit derivable
by a shipowner from the employment of his ship
to carry his own goods or moveables, as well as
freight payable by a third party, but does not
include passage money.
17.
The term 'goods' means goods in the nature of
merchandise, and does not include personal
effects or provisions and stores for use on
board.
In
the absence of any usage to the contrary, deck
cargo and living animals must be insured
specifically, and not under the general
denomination of goods.
[Note:
by virtue of the Public Order Act 1986 the words
'rioters' in rule 8 and 'riot' in rule 10 shall
be construed in accordance with section I of
that Act.]
Second
Schedule - [This Schedule was repealed by the
Statute Law Revision 1927]
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