Miller's Marine War Risks

Description

Miller's Marine War Risks is the only book devoted to drawing together and analysing the insurance of commercial shipping against war risks. It merges analysis of the legal principles, case law, and legislation with the practice of the insurance market in order to provide commentary on difficult questions concerning liabilities, claims, and coverage. With global events becoming more uncertain in the Gulf and elsewhere, the updating of Michael Miller’s classic text will be of great use to legal practitioners, the insurance market, and the shipping industry throughout the world. Cover Half Title Series Page Title Page Copyright Page Table of Contents Detailed Contents Foreword by Sir Bernard Rix Preface to the Fourth Edition Acknowledgments Table of cases Table of legislation CHAPTER 1. THE HISTORY OF THE WAR RISKS POLICY The S.G. Form The MAR Form The development of war risks insurance, and the f.c. & s Clause The work of Alan Jackson and his Committee: the end of the S.G. Form and the advent of the MAR and revised Institute Time Clauses CHAPTER 2. THE UNDERWRITERS The London market The Mutual Associations CHAPTER 3. THE PREMIUMS Background to premiums Additional war risk premiums and their calculation Who pays the AWRP? Time-charter cases The voyage charter cases The BIMCO CONWARTIME and VOYWAR 2013 Clauses CHAPTER 4. CANCELLATION AND AUTOMATIC TERMINATION OFCOVER CLAUSE Cancellation on seven days’ notice Hostile detonation of any nuclear weapon of war Ships and freight Containers Cargo stored afloat Cargo—War Clauses (general cargo), War Clauses (Special Cargo) and Additional Expenses Cargo—strikes Outbreak of war between the Five Permanent Members of the Security Council Requisition The Mutual Associations The Combined Group of War Risks Clubs UK War Risks The Hellenic War Risks Club CHAPTER 5. THE INSURED PERILS: AN OVERVIEW “Insured perils” versus “risks covered” Approach to the interpretation of the insured perils The role of criminal and public international law when interpreting the insured perils Future conflicts—cyber warfare? CHAPTER 6. WAR The definition of “war” The Pesquerias Case The facts The casualties The courts’ decisions World War II The Korean War The Falklands War The First Gulf War Period 1: 2 August 1990 to 16 January 1991 Period 2: 16 January to end-February 1991 Period 3: March 1991 to February 2003 Conflict in Kosovo The 9/11 attacks Key principles derived from the case law CHAPTER 7. CIVIL WAR Spinney’s (1948) Ltd. and Others v. Royal Insurance The facts Was there a civil war within the meaning of the peril? CHAPTER 8. REVOLUTION, REBELLION, INSURRECTION … Must the proximate cause of a casualty be proven to fall within one of these specified insured perils in order for cover to be engaged? Revolution, rebellion and insurrection defined “Military or usurped power”: the forerunners of “revolution, rebellion, insurrection” Revolution, rebellion, insurrection in the War Risks Policy Conclusions CHAPTER 9. … OR CIVIL STRIFE ARISING THEREFROM … CHAPTER 10. … OR ANY HOSTILE ACT BY OR AGAINST ABELLIGERENT POWER CHAPTER 11. CAPTURE Origin of the capture and seizure perils Capture, etc.: Hull, Freight and Cargo Clauses Capture, etc.: Hull Clauses Capture, etc.: Freight Clauses Capture, etc.: Cargo Clauses Differences between “capture” and “seizure” The meaning of “capture” Illustrative cases: the insured peril Unlikelihood of recovery Apprehension of capture Prize and search cases CHAPTER 12. SEIZURE Meaning of “seizure” Illustrative cases describing the insured peril The presence of force Public or private ends Seizure of the ship by those on board Seizure of the cargo by those on board CHAPTER 13. ARREST, RESTRAINT, DETAINMENT … General Arrest Restraint Detainment Cases illustrating the insured peril Force The frustration Clause Mutual War Risks Associations—practice The Bamburi decision The 12-month Clause CHAPTER 14. … AND THE CONSEQUENCES THEREOF OR ANYATTEMPT THEREAT CHAPTER 15. DERELICT MINES, TORPEDOES, BOMBS ANDWEAPONS OF WAR Generally Ships and freight Containers Cargo CHAPTER 16. STRIKERS, LOCKED-OUT WORKMEN OR PERSONSTAKING PART IN LABOUR DISTURBANCES, RIOTS ORCIVIL COMMOTIONS The “strikes risk” Clause “Strikers” “Locked-out workmen” “Persons taking part in labour disturbances” Examples of “labour disturbances” CHAPTER 17. RIOTS, CIVIL COMMOTIONS “Riot” Riot as a public order offence Riot as an insured peril The Riot (Damages) Act 1886 and the Riot Compensation Act 2016 “Civil commotion” Riot, civil commotion in other common law jurisdictions Summary CHAPTER 18. ANY TERRORIST … Maritime terrorism: incidences and litigation Judicial approaches to interpreting terrorism as a contractual term The definition of terrorism in marine insurance policies Statutory definitions of terrorism The judicial interpretation of “terrorism” in insurance-related litigation The insured perils under Aii: the relationship between the 9/11 attacks and the subsequent US government warnings Did 9/11 amount to “acts of war” or “armed conflict” within the seventh paragraph of perils under cover Ai? Prior claims related to terrorism CHAPTER 19. … OR ANY PERSON ACTING MALICIOUSLY OR FROMA POLITICAL MOTIVE Malice and maliciously Malice as “targeted” or “wanton” vandalism The “targeted malice” test The “wider” test developed by Colman J. The test in The B Atlantic Malicious damage: specific intent and non-marine insurance cases Conclusions on malicious conduct Malicious acts: proof of complicity Malicious damage and related perils Examples from beyond the litigated cases Political motive CHAPTER 20. PIRACY Piracy as an insured peril: Hull & Machinery cover Piracy as an insured peril: cargo cover Piracy: the limits of the peril Piracy: incidences Piracy: definitional issues Piracy and location: high seas/territorial waters Piracy and method: theft/attempted theft/ransom Piracy and strangers: crew/passengers Piracy and seizure for political motive Anti-piracy measures and marine insurance Piracy: nature and timing of loss by piratical seizure Actual total loss in marine insurance Piratical capture and loss Capture and recovery Examples of losses by piracy from outside the litigated cases Summary CHAPTER 21. CONFISCATION AND EXPROPRIATION CHAPTER 22. SUE AND LABOUR Introduction Commencement and duration of sue and labour Effect of failure to sue and labour Extraordinary expenses Salvage and general average Illegality CHAPTER 23. EXCLUSIONS General approach to construction Requisition (Clause 4.1.3) Pre-emption (Clause 4.1.3) Exclusion for capture, etc., by the “home” government (Clause 4.1.4) Exclusion for quarantine regulations, customs or trading regulations (Clause 4.1.5) Exclusion for “the operation of ordinary judicial process” (Clause 4.1.6) Exclusion for “failure to provide security or to pay any fine or penalty or any financial cause” (Clause 4.1.6) CHAPTER 24. WAR RISKS AND MARINE INSURANCE LEGISLATION The Marine Insurance Act 1906: construction and effect on the common law Interpretation of the 1906 Act as a codifying statute The Insurance Act 2015: construction and effect on the common law Contracting out under the Marine Insurance Act 1906 and the Insurance Act 2015 Utmost good faith, non-disclosure, misrepresentation and fair presentation of the risk under the MIA 1906 and IA 2015 Misrepresentation and non-disclosure under the MIA 1906 Non-disclosure under the MIA 1906 The modern application of section 18 MIA 1906 The broker’s duty of pre-contractual disclosure under section 19 MIA 1906 Misrepresentation under section 20 MIA 1906 Misrepresentation and non-disclosure (“fair presentation of the risk”) under the IA 2015 Warranties and risk management clauses Navigation limits: the current contractual provisions Navigation limits as promissory warranties Promissory warranties and the MIA 1906 Risk management clauses under the MIA 1906 Insurance warranties and risk management clauses under the IA 2015 CHAPTER 25. TOTAL LOSS AND NOTICE OF ABANDONMENT Actual and constructive total losses Election for a constructive total loss Abandonment Consequences of rejection of notice of abandonment Restoration Time for giving notice of abandonment The 12-month Clause Cases where notice of abandonment is not necessary Missing ships CHAPTER 26. HELD COVERED The “family” of held covered clauses “Simple” held covered clauses Held covered clauses, notice and the doctrine of utmost good faith Simple held covered clauses: conclusions Complex held covered clauses Complex clauses: prior notice The doctrine of utmost good faith CHAPTER 27. WILFUL MISCONDUCT AND FRAUDULENT CLAIMS Proof of wilful misconduct and scuttling Wilful misconduct in war risks insurance Wilful misconduct as a contractual exclusion or public policy rule Wilful misconduct: deliberate actions, gross negligence and recklessness Forfeiture rule in war risks insurance The limits of “fraudulent claims” for the purposes of forfeiture The forfeiture remedy at common law The forfeiture remedy under the Insurance Act 2015 The continuing duty of utmost good faith in war risks insurance Cumulative effect CHAPTER 28. THE PROXIMATE CAUSE Proximate cause generally Several things happen more or less at once Leyland Shipping Company Limited v. Norwich Union Fire Insurance Society Ltd. A casualty happens but its cause cannot be established Conclusion on proximate cause CHAPTER 29. CARGO WAR AND STRIKES CLAUSES Introductory Institute War Clauses (Cargo) Institute Strikes Clauses (Cargo) Exclusion Clauses Duration—War Clauses Duration—Strikes Clauses Duration—notices Minimising losses and waiver Reasonable despatch CHAPTER 30. CONTAINERS CHAPTER 31. WAR RISK INSURANCE IN TIME OF WAR The reinsurance agreement The reinsurance: Clauses 1 to 3 The reinsured ships: Clauses 4 to 5 Insured values: Clauses 6 to 8 Conversion into sterling: Clauses 9 to 11 The reinsurance premiums: Clauses 12 to 14 General premium notices: Clause 15 Special premium notices: Clause 16 Consultation: Clause 17 Settlement of claims: Clauses 18 to 21 Disputes: Clause 31 Commencement and termination: Clauses 33 to 35 The NATO war risks insurance scheme Introductory First stage—1970 to 1982 Second stage—1982 to 1992 The policy Methods of underwriting Structure The improved valuation scheme The improved basic principles The South Atlantic War 1982—the Gulf War 1991 Index