The Modern Law of Marine Insurance: Volume Five

Description

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. 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