Dissertations / Theses on the topic 'Law of Marine Insurance'

Delay in marine adventure is an important and frequent phenomenon of maritime transport and it affects various parties and their interests under several types of marine insurance policies, including but not limited to hull and machinery, cargo, freight and loss of hire. Losses arising from delay are almost always excluded under the standard forms of these policies and under the Marine Insurance Act 1906 (MIA). This thesis traces back the common law origins of the exclusion, identifies the motivations behind the exclusion and submits that the risk of delay and some types of losses arising therefrom were not always excluded under the common law. By introducing distinctions among the types of delay, the work argues that the judgments in favour of the exclusion of delay losses shall be interpreted according to the type of delay and shall not be authority for all types of delay. The findings of the work accordingly clarify and considerably restrict the scope of the exclusion. The thesis also tackles the MIA provisions pertaining to the impact of delay on voyage policies. It argues that the relevant provisions are not clear and do not entirely reflect their common law background. On the ground that they have not been litigated since the enactment of the MIA, the research assesses whether they are obsolete and proposes that the provisions should be retained subject to reforms.

The conduct of Marine insurance broker is subject to the general principles of agency law. However, it is also affected by the traditional customs and contemporary market practices in the field of marine insurance. As a result, marine insurance broker’s duties and liabilities have unique features which are different or not that common for other general agents. Firstly, marine insurance brokers have duties that will not be observed by other general agents who effect a contract on behalf of their principal. For example, marine insurance broker has a personal liability to pay the premium under the marine insurance contract he obtained for the assured. Secondly, marine insurance broker’s multiple roles in the course of its business frequently raise the issue of conflict of duty and interest. Thirdly, the broker’s way of placing a cover makes it hard to put the line between the broker’s service of providing information and the service of providing advice. This is crucial for assessing the broker’s liabilities when he fails to obtain the cover for the assured. These exceptional features make marine insurance broker’s duties and liabilities a valuable topic for research. However, there is no scholarly monograph which specifically considers these matters. The thesis will examine whether the exceptional duties should be reformed to comply with the general law of contract and agency. If not, is there any reform that can be made to improve the clarity, certainty and fairness of these duties. The thesis will also identify the broker’s duties that are inclined to give rise to conflict of duty and interest and analyse how the issues are being treated by the court, and regulation authorities. Then the author will make recommendations on how to avoid the conflict of duties and interest. Finally, the thesis will discuss how the broker’s liabilities are being assessed and how the brokers can protect their own risks of extensive liability by inserting a limitation of liability clause in the retainer.

Open covers have been widely deployed in the London marine insurance market for many years, even though a significant number of legal issues arising out of their use still needs to be resolved. Not surprisingly, the law concerning open covers is very much alive and open to further development. Given that, quite remarkably, no research study has been done specifically on those particular covers to date; this thesis is aimed at making good that deficiency. To ensure that observation is made over the whole picture in respect of the open covers and to produce a comprehensive guide to the legal complexity arising out of the association between them and their subsequent individual declarations, the complete thesis will comprise five chapters: 60 l Chapter 1 will provide historical information and development background of open covers and also will set out the main differences in the operation of floating policies and open covers which were derived originally from the former. Chapter 2 will illustrate (1) how and why the legal nature of an open cover impacts on the parties' rights, obligations, privileges and immunities, and (2) how and why the formation of an open cover plays a key role in the determination of proper nature. Chapter 3 will shed light on the applicability of the duty of utmost good faith to open covers by explaining the doctrine of utmost good faith within the general law of insurance and then clarifying whether the duty is enforceable pertaining to the covers themselves or only pertaining to subsequent policies individually. Chapter 4 will explore the agency status of insurance brokers in the context of open covers. To this end, it focuses, first, upon giving the general definition of insurance broking, secondly, describing the use and performance of the brokers in the procurement process, currency and claims process of open covers, and lastly the measure of damages recoverable from the brokers. Chapter 5 will discuss conflict of laws in open covers, and in particular problems of jurisdiction and choice of law where the open cover and declarations under it are potentially governed by different regimes. Finally, the legal and practical issues that have been identified, and their suggested solutions will be summarised in the conclusion.

Marine reinsurance is an indemnity relationship in which the marine reinsurer indemnifies the insurance company for losses paid. When a primary insurance company becomes insolvent, there may be insufficient funds in the estate to pay claims in full and it may take several years to distribute such funds.<br>For this reason, some insureds and third-party claimants seek to collect reinsurance proceeds directly from reinsurers (direct actions). However, The indemnity nature of the reinsurance agreement prohibits direct actions against reinsurers for reinsurance proceeds by insureds and other claimants. Under a marine reinsurance contract, the reinsurer does not assume the liability of the reinsured insurance company. In other words, the original insured cannot enforce his insurer's contract of reinsurance and is not a third-party beneficiary to that contract. Therefore, no privity exists between the reinsurer and the insured or persons claiming through him under the contract of reinsurance.<br>Absent an intent to benefit directly or create rights in insureds or other third parties, reinsurance proceeds are payable only to the reinsured insurance company or its domiciliary liquidator where the insurer becomes insolvent.<br>The insolvency of the reinsured does not affect this fundamental premise. Yet, in the face of this well-established principle of law, the original insured and other claimants still seek to recover themselves by making direct claims on the insolvent's reinsurers. The persistence in pursuing the variety of theories upon which the claimants have proceeded suggests a continuing unwillingness to accept the balancing of interests stay in liquidation statutes and the need for reinsurers to clearly settle their rights and obligations in reinsurance contracts.

Causation is a crucial issue in ascertaining whether certain loss or damage is covered in an insurance policy. Although marine insurance is well-known for investigating the “proximate” cause of loss in order to determine the insurers’ liability, decisions by English courts are far from reconcilable. The problem has been suggested to be the inference of matters of fact, and consequently, causal connection is deemed as a complex and uncertain issue. In the light of incoherency and uncertainty of law in this respect, the value of this research lies in the effort to conceptualize and develop a set of consistent causation rules in the marine insurance context and to explore how perils themselves would affect the formation and application of causation rules. Essentially, the proximate cause in law should not remain as a mere open question of fact. In order to achieve the merits, this dissertation scrutinises the causation theory itself and also the correlations between the perils involved in the policy. Introduction presents the legal problem of causation in marine insurance law and stresses the importance of setting up coherent and certain rules. The research on the pure causation theory consists of two chapters: Chapter One regarding the test of causation, i.e. the doctrine of proximity; and Chapter Two on concurrent causes. The subsequent three chapters concentrate on identifying the cause of loss from the nature and concepts of different marine risks. Chapter Three introduces marine perils and examines how causation rules apply in the case of a few typical insured and uninsured perils; Chapter Four and Chapter Five are concerned with exclusive researches on inherent vice and seaworthiness respectively. Apart from the substantive analysis on causation, burden of proof is addressed in the last chapter. Finally, the Conclusion provides a summary of the issues and the set of causation rules.

Includes bibliographical references.<br>This thesis has the aim of analysing the metamorphosis of piracy into its present day status as a menace and how it has impacted most especially on the marine insurance industry. The marine insurance industry is basically comprised of the relationship between the assured (shipowner/cargo owner) and the insurer, and the nexus which creates the relationship between these parties lies in the marine insurance policy which is taken out by the assured and underwritten by the insurer.

This thesis consists of a comparative analysis of two elements of marine insurance that are the source of divergence between common and civil law jurisdictions: the duty of utmost good faith and warranties. The thorough analysis will show that the two jurisdictions and, presumably, the common and civil law traditions, diverge in the field of marine insurance in the legal concepts as such, but not so much in the substance of the contract.<br>The duty of utmost good faith permits the insurer to be fully and properly informed about all circumstances material to the assessment of the risk and to making of the contract and its terms. Despite relative coherency of the regulation of the issues of materiality and causality between the breach of the duty of utmost good faith and the loss occurred, the sanctions for the breach vary significantly between the civil and common law jurisdictions. It will be examined how the warranty, a typical common law concept, has been replaced in civil law jurisdictions.<br>Various methods of harmonization will be examined and discussed in the light of possible application in the field of marine insurance. In the conclusion, it will be argued that reconciling fundamental legal concepts inherent to various legal traditions is a demanding task and may not be as advantageous for the respective field of law as it is expected to.

As one of the most distinctive characteristics of English insurance law, the duty of utmost good faith is essentially stated in sections 17-20 of the Marine Insurance Act 1906. According to the statutory rules, both of the insurance parties must observe utmost good faith before the conclusion of an insurance contract. After one century of its application, both the judiciary and academics expressed their concerns in terms of its legislative defects and complexity in practice. Some developments have been made in recent judicial decisions and in statutory reform, e.g. the English Consumer Insurance (Disclosure and Representations) Act 2012, and Recommendations, Statutes and Explanations on the Amendments of Chinese Maritime Code of the People’s Republic of China. Therefore, debatable issues and law reform programs in both English and Chinese law are considered in the main body of this thesis. The examination is essentially based upon, (1) the materiality test of the concealed/misrepresented circumstances which can empower the injured party to rescind the insurance abinitio; (2) the duration of utmost good faith and specific issues; (3) the protective measures related to innocent misconduct; (4) the legal status of good faith and its application to fraudulent behaviour; and (5) whether the classic English utmost good faith doctrine can be extended to Chinese law. Therefore, the main objective of this thesis is to provide a comprehensive study of the current status and developments of the duty of utmost good faith in both English and Chinese law, which is of fundamental importance, not only at the negotiation stage, but also throughout the performance and at the claiming stage of an insurance contract. After identifying and analysing these crucial issues, this thesis concludes with some possible solutions.

A marine insurance contract is a contract of utmost good faith (uberrimae fidei), which requires the duty of disclosure prior to the conclusion of a contract. This is essentially stated in ss. 17 and 18 of the Marine Insurance Act 1906. Despite the 100-year application of these provisions, the defects are shown and the injustice occurs. The voluminous case laws and their complexity suggest nothing else apart from that this area of law is highly problematic. The criticisms are essentially rested upon two grounds: (1) the material fact which rests upon the view of the ‘prudent insurer’ makes it difficult for the assured to determine for himself the fact to be disclosed (2) in case of non-disclosure, the remedy of avoidance applies regardless of culpability of the party in breach. As such, the reform to the law is inevitable and the purpose of this thesis is to suggest how reform can be achieved. Two possible ways to bring the change to the law are considered. These are (1) to adopt the alternative solutions identified in other jurisdictions or (2) to re-consider whether the law on duty of disclosure as has been recognised since the seminal judgment of Lord Mansfield in Carter v. Boehm (1766) 3 Burr. 1905 has been correctly applied. This thesis concludes that the judgment of Lord Mansfield has been misunderstood in the UK and that, to constitute non-disclosure, only the deliberate intention is required and that the remedy of avoidance is justifiable upon the public policy ground. Such duty should be based upon the broad notion of good faith (bonae fidei), a flexible concept of fairness and justice. In the end, the draft provisions are formulated to reflect these suggestions.

This thesis considers the extent to which ‘fraud unravels all’ explains the judicial response to fraudulent marine insurance claims and fraud in documentary credit transactions. The simplicity of the maxim suggests that fraud does not unduly trouble the courts and gives the impression of a uniform and deterrent approach to fraud within the civil law. The comparison made in this thesis demonstrates this impression to be misleading; the courts have conceived of fraud differently and have employed context-specific policy concerns to justify the shape of each fraud rule. The insurance discussions are dominated by deterrence with legal sanctions placed at the heart of the model. By contrast, the trade finance courts adopt a more laissez-faire attitude which prioritises the efficiency of the credit mechanism and considers deterrence an ex ante issue for the parties. Accordingly, this thesis examines the respective policy justifications and considers their continued validity in light of comparative and empirical evidence. In the insurance context, it is argued that the judicial understanding of deterrence is outdated which renders the resulting legal rule ineffective. An examination of approaches to fraud in other jurisdictions then demonstrates the possibility of constructing a more nuanced remedial framework which would balance the competing policy considerations of deterrence and proportionality. The documentary credit discussion contends that the narrow English approach to fraud is not an inevitable policy decision and moreover, has resulted in detrimental consequences for the credit mechanism. It employs empirical data to develop an explanation of deterrence for the duration of credit transactions. In both contexts, these arguments have important implications for the future development of the law. In summary, this research undermines the utility of ‘fraud unravels all’ and calls instead for courts and academics to resist instinctively attractive solutions in favour of a robust, empirically-informed approach to fraud.

Shipping concerns persons and property. Both are subjected to the inherent dangers of the sea and as such, maritime safety is, and has been, a matter of serious concern. This thesis is concerned with property endangered at sea by fortuitous events as well as through the agency of human error, and the law governing the saving of property so imperilled. The thesis addresses the three acts of saving maritime property namely, salvage, general average and sue and labour in selective detail and examines the evolution of each, the legal principles, and their distinctive and common features within the context of indemnification or recovery under the law of marine insurance which serves as the common link. A comparative analysis of the three saving acts is carried out within this context. The relevant provisions of the Marine Insurance Act 1906 as well as express clauses pertinent to the three principal subject matters provide the foci for the discussions. Recent developments in the regimes of salvage and general average and the treatment of sue and labour in recent decisions, are addressed. It is concluded that redistribution of risks and liabilities may take different shapes and forms in maritime commerce, particularly in view of other concerns such as security of life and property at sea, coming to the forefront in the principal international maritime fora. The thesis consists of seven chapters. In the introductory chapter, the purpose of the thesis and the framework of research are set out. Chapters 2 to 5 contain detailed discussions and analyses of each of the three saving acts. The comparative analysis of the three regimes is presented in Chapter 6. In the concluding chapter a summary of the findings of the research effort and the conclusions are presented.

In January 1982 marine cargo insurance was the subject of a very radical change on the London marine insurance market. The changes included the abandonment of the historical S. G. policy and institute clauses of 1963. The market introduced the new MAR policy and a new set of standard cargo clauses, designated A, B, and C. The new Institute Cargo Clauses were designed for use on an international basis and have been adopted in many foreign maritime insurance markets. Subsequent to their introduction they have attracted much attention and debate. The main aim of this research is to thoroughly examine, explain and evaluate all the provisions of the Institute Cargo Clauses, and to assess their success and points of weakness. As the clauses constitute the terms of the relevant contract of marine insurance they must be considered in the context of the Marine Insurance Act of 1906, and also the applicable law cases. The clauses have been investigated on the presumption that English law and practice applies. This thesis also includes a comparison with Jordanian law, with an ancillary section concerned with the placing of marine cargo cover in the Jordanian market where the Institute Cargo Clauses have been adopted, and with the relevant marine insurance provisions in the Jordan Maritime Commercial Law of 1972 also examined. The thesis comprises 11 chapters: except for the first three chapters all follow the structure of the clauses. In summary, the first chapter describes the basic features of the London market and defines its role as the overseer of insurance conditions. This is coupled with an overview of developments in the practical stages of placing cargo cover. The second chapter deals with features of the Jordanian insurance market and reviews the statutes governing its activities, including cargo cover, and the system adopted in placing insurance cover. The third chapter is a linking chapter which gives a brief account of the old system of marine cargo cover and discusses the reasons behind the radical changes in the London market in 1982. Chapter Four deals with the risks covered in the A, B, and C clauses respectively, particular attention being given to all risks cover as it is the most common form used in cargo insurance. Chapter Five analyses the exclusions in the Institute Cargo Clauses with special reference to the General Exclusions Clauses (cl . 4) and the War Exclusion Clause(cl 6) as these provide the most common intersection between `perils insured' and `perils excluded'. Chapter Six discusses the `Duration Clauses', with special consideration being given to the Transit Clause. `Deviation' and `Change of Voyage' are discussed and compared with the relevant statutory provisions in the M. I. A 1906. Chapter Seven deals with claims. Consideration, in particular, is given to the Insurable Interest and Constructive Total Loss clauses. Chapter Eight is devoted to evaluating the effect of inserting the `Benefit of Insurance' Clause in a carriage of goods by sea contract and the impact of the `Not to inure' Clause in marine cargo cover. Chapter Nine examines, in considerable depth, the minimising losses clauses, by discussing the impact of the `Duty of the Assured' Clause and the contradiction between the statutory sue and labour clause in section 78 and section 55 of the M. I. A of 1906. Chapter Ten is concerned with the ambit and the function of the Reasonable Dispatch clause. The last chapter is the conclusion. It is hoped that this work will contribute, with other works in the relevant field, towards a better understanding of underwriting marine cargo cover both in_ the London and the Jordanian markets, and that it may also prove of use and interest to Middle Eastern insurance practitioners and academics.

La pratique des assurances maritimes est étroitement liée au commerce maritime : elle en suit les mouvances jusqu’à en acquérir une autonomie concrétisée par le mouvement de colonisation. En effet, la colonisation française, réalisée dans un but de domination politique mais surtout de prospérité économique de la métropole, contribue au développement des assurances. Le contrat d’assurance offre une protection aux échanges commerciaux maritimes contre les risques survenant sur mer le plaçant au cœur de l’économie du XVIIIe au XIXe siècle. Il apparaît comme une nécessité notamment pour les îles situées aux Antilles ou dans l’océan Indien pour lesquelles le commerce se fait exclusivement par navire. Envisager les risques maritimes sous le prisme de l’assureur permet de constater que même si les transactions avec les colonies favorisent la multiplication des assurances, les gouvernements successifs attribuent de façon exclusive la législation et la pratique des assurances à la métropole. Il en ressort une politique coloniale commerciale au seul profit de la métropole, excluant toute tentative d’appropriation des colons de la pratique de l’assurance maritime. Cette idée se confirme dès la phase de souscription du contrat d’assurance lors de la détermination des risques que l’assureur se propose de garantir et se poursuit lorsque le risque se réalise et qu’il doit intervenir pour réparer le sinistre. La spécificité coloniale se traduit donc par une mainmise de la métropole sur cette matière même si les assureurs doivent prendre en compte les caractéristiques des échanges maritimes avec les colonies<br>The practice of maritime insurance was closely linked to maritime commerce, particularly that concerning the colonies. French colonization, undertaken for reasons of political domination but especially in the interest of the economic prosperity of the home country, contributed to the development of insurance. Insurance contracts offered protection against the risks arising at sea, placing them at the heart of the economy of the eighteenth and nineteenth centuries. This insurance was necessary in particular for islands located in the Antilles or in the Indian Ocean, where trade was exclusively conducted by ship. Even though the commerce with the colonies increased the necessity of insurance, the successive French governments reserved legislation and the practice of insurance to the home country. The colonial commercial policy only benefited the home country, excluding settlers from the practice of maritime insurance. This was the case, starting with the formulation of the insurance contract when determining the risks which the insurer would guarantee, and continuing in case of accident and claims made

The Rotterdam Rules (RRs) have been recently introduced to replace previous Sea Conventions in an attempt to modernise, enhance legal certainty and to better harmonise the law in international carriage of goods by sea. The new provisions of the RRs covering container transport and seeking to redress the balance between carriers and shippers have been subject to criticism. The objective of this thesis is to investigate the effectiveness of the RRs liability regime in achieving their goals by comparing it with previous Sea Conventions. To satisfy this goal, the focus is to ascertain the impact of the RRs by examining the perceptions and voluntary adoption of the regime by private actors including shipping, marine insurance companies and P&I Clubs. As the RRs have yet to receive the requisite number of ratifications to come into legal force, these views are of particular importance. The theory of transnational governance, which highlights the shift in regulatory power from national governments to private actors is analysed, as arguably it is reflected in the promotion of this International Convention to encourage international trade. The views of private and non-private actors accordingly have a significant bearing on the ability of the RRs to contribute to the goals of harmonisation and certainty in the field of commercial law. The research finds some tension between the certainty provided by the current regime and the lack of clarity regarding how the RRs may work in practice. Thus, the potential costs of adopting the new regime are likely to be considered greater than the prospective benefits. Based on the analysis of private actors’ perceptions of the RRs, the thesis therefore concludes that the degree of certainty provided by the existing regime hinders increased harmonisation through the adoption of the RRs. Greater awareness and involvement on the part of the private actors is required to drive legal harmonisation both in this context, and more generally in the area of transnational governance.

Le transport maritime qui est une des modalités du commerce .international, a pu se développer grâce à l'assurance maritime. Compte tenu de la technicité et de son caractère international, les litiges en matière d'assurance maritime ont été souvent réglés par voie d'arbitrage. Le recours à l'arbitrage en assurance maritime peut être à l'occasion d'un litige entre assureur/assuré assureur subrogé/tiers responsable, assureur/réassureur etc. Cette étude porte sur ces différents litiges tel que soumis à l'arbitrage el leurs spécificités, il conviendra d'étudier ce sujet dans un cadre comparatif entre le droit français, marocain et anglais. Par ailleurs, l'approche du sujet par la méthode comparative nous permet1ra de découvrir les solutions concrètes finalement retenues dans les trois systèmes juridiques en question tout en rapprochant cela au débat doctrinal et jurisprudentiel relatif à cette question<br>Maritime transport, which is an inherent part of international trade, has been able to develop due mainly to marine insurance. Marine insurance disputes, given their technical nature and their international character, have been often settled by arbitration. The use of arbitration in marine insurance may be in the course of litigation between insurer and insured, subrogated insurer and a responsible third party, insurer and reinsurer, etc. This study deals with aspects peculiar to maritime law and various disputes submitted to arbitration. This thesis delves into the comparison of French. Moroccan and English laws. Moreover, the comparative approach to the subject will allow us, while bringing it closer to the doctrinal and jurisprudential debate, to discover the concrete settlements reached in the three legal systems in question

As a special contractual term, warranties in marine insurance policy are crucial for risk assessment purpose. Warranty in marine insurance law has survived for centuries. Despite its long period of existence, the current warranty regime has been criticised by a number of scholars and the Law Commission. The main criticism is that it operates unfairly against the assured. Due to the existing problem of the current warranty regime, the main aim of this research is to critically analyse the law of warranty in the English Marine Insurance Act 1906. Where necessary, some law reform proposals will be introduced into the Marine Insurance Act 1906. Moreover, a critical comparison between the law of warranty in the Chinese Maritime Code 1993 and the law of warranty in the Marine Insurance Act 1906 will be made. Due to the simple provisions of Article 235 of the Maritime Code which deals with the issue of warranty, some new law proposals will be introduced into this Article for clarification purpose. In order to achieve these merits, this thesis concentrates on the critical examination as to the law of warranty under the relevant provisions of the Marine Insurance Act 1906 and the Maritime Code 1993. Some law reform proposals made by other scholars will be critically analysed. In particular, the historical development of English and Chinese marine insurance will be provided in Chapter 1 and 3 respectively. The research on the issue of warranty consists of 4 Chapters, namely Chapter 2, Chapter 4, Chapter 5 and Chapter 6. Chapter 2 provides the nature of warranty under section 33 and 34 of the Marine Insurance Act 1906 and some relevant law reform proposals. Chapter 4 consists of the discussion as to the statutory rules of warranty under Article 235 of the Maritime Code. Chapter 5 specifies the statutory rules for the creation of express warranty. Chapter 6 deals with the critical review as to the different types of implied warranty in section 39 and 41 of the Marine Insurance Act 1906, and the author will also introduce some new statutory rules as to the implied warranties to replace the present law. Additionally, as there is no implied warranty under the Maritime Code, in this Chapter, the statutory rules as to implied warranties will be introduced and inserted into the Maritime Code. Finally, Chapter 7 provides the general conclusion of this thesis for the law of warranty in England and China.

It is generally assumed that by virtue of s. 5 of the Civil Law Act 1956 (Malaysia), which deals with the application of English law, the law of insurance in Malaysia follows strictly the law of England either as it stood on 7 April 1956 (for the states of Johore, Kedah, Kelantan, Negri Sembilan, Pahang, Perak, Perlis, Trengganu and Selangor) or as it stands currently (for the states of Penang, Malacca, Sabah and Sarawak). Whilst this is essentially correct, there are several factors which result in the development and application of some divergent principles. This thesis seeks to trace the general body of insurance law which has developed in Malaysia. It starts with a historical account of the insurance industry in the country. This is followed by ten chapters dealing with the main aspects of the substantive law. In these chapters, an attempt is made to highlight any noticeable departure from the statute law or common law of England. Such a departure may be due to the fact that the relevant law in Malaysia differs from that in England, for example the provisions of the Contracts Act 1950 (Malaysia) in relation to contractual formalities. Again, the provisions of the Insurance Act 1963 (Malaysia) in relation to insurable interest differ from the English common law. Moreover, Malaysian judges have interpreted and applied the common law in ways which do not always mirror English developments. Even where there are almost identical statutory provisions, such as those in relation to trusts of life policies, there may be problems which are unique to Malaysia because of the different personal laws of its peoples. The next chapter deals with Compulsory Third Party Motor Insurance which is the most important branch of general insurance in the country. The thesis then describes the introduction of a parallel system of insurance, ie. the Islamic system of insurance in the country, a development in Malaysia and a few other Muslim countries. The final chapter looks at how Malaysia, as a developing country, regulates its insurance industry.

1. There are two major pieces of work (the Code Review and Sutton) and a number of themes that are the subject matter for this submission. The Insurance Council of Australia appointed me as the Independent Reviewer of the General Insurance Code of Practice, under the Code and the Terms of Reference, on 3 May 2012. 2. The Code Review work took about two years and involved the Code Issues Paper in October 2012 of 111 pages and the Code Review Report in May 2013 of 205 pages. The majority of my recommendations were accepted and the report has made a contribution to the rethinking of self-regulation and the place of voluntary codes in financial services. By then I was writing, with Professor Robert Merkin QC Sutton on Insurance Law for its 4th Edition. It is two volumes, 24 chapters and about 2100 pages excluding tables and index; my contribution was 12 chapters totalling about 960 pages. 3. The Code Review work, particularly on government agency regulation and self-regulation, influenced the pervasive material in Sutton on regulation. It was the subject of the AIDA Rome paper in 2014 on Principles for Self-Regulation; the paper was published by AIDA. 4. Sutton was published in 2015. Its themes are set out below. Those themes are in turn influences in the other work for this submission. There are seven main themes in the publications which I present in this submission. 5. The historical influences in relation to my Code Review and the historical contextual material in Sutton stimulated my interest in the wider influences on the development of commerce, insurance and law, with a central interest in the ethical foundations of the law and regulation. This aspect was also developed in the Masel Lecture and the article William Murray, Lord Mansfield: His Life, Times and Legacy – Good Faith and Good Works. 6. There had been a number of issues raised in my Code Review about mental illness, insurance and discrimination. I spoke at AIDA in Rome 2014 on Insurance Discrimination Law and the paper was published by AIDA. Then in 2016, the Australian Centre for Financial Studies commissioned me to write the ACFS MID Paper on the use by insurers of mental illness data. The historical perspective and the regulatory framework were important features of both papers. 7. A number of the Sutton themes were first opened out in my Professional Indemnity Insurance Law. The main themes were, in decreasing order of connection with Professional Indemnity Insurance Law, as follows. The first theme is the identification, development and application of the indemnity principle. The second is the adaptation and application of the analysis of contracts by primary and secondary obligations. This theme is in Sutton on the main concepts in insurance as well as liability insurance issues. The Liability Disputes Chapter condenses this thinking and account. The third theme was a renovation of how life insurance issues should be analysed and presented. This life insurance material was then adapted and infused with practical guidance on the decision making process on some issues for the FOS Life Insurance Manual. I developed an aspect of life insurance in the TPD Article. Each of these themes are in my submission original in concept and execution. Each has influenced the development of the law by legisation and the courts.

The present licentiate thesis analyses developments in Swedish marine insurance during the interwar period, including both direct marine insurance and marine reinsurance. This is done in order to provide insights on how companies of a highly internationalised and vulnerable line of insurance were affected by and responded to new risks during a period of far-reaching international financial and economic crises. Finally, the consequences of new risks and strategies are assessed. This thesis argues that during the interwar period Swedish maritime trade and Swedish marine insurance greatly depended on each other for marine insurance cover and marine insurance premium incomes. The business results in Swedish marine insurance partly depended on the development of Swedish trade. These business results were also vulnerable to currency risks. Swedish marine insurers faced no similar trade or currency risks during the two decades preceding World War I, and accordingly the returns on Swedish marine insurance were lower during the interwar period than during the last two pre-war decades. These factors probably bore their most severe consequences during the early 1920s when Swedish marine insurance on average induced losses to insurers. The remaining years of the period constituted a long-run recovery, and the Great Depression of the early 1930s caused no difficulties of the same order. This thesis also indicates that interwar Swedish marine insurers responded to new risks by increasing the level of cession to reinsurers. Another response was to increase the level of differentiation among insurance lines. This thesis describes the consequences of new risks and strategies in interwar Swedish marine insurance, focusing on the development of the Swedish marine insurance market structure and on the business results of Swedish marine insurers. Though this market shrunk and grew excessively, the relative importance of stock and mutual insurers showed only minor fluctuations. The importance of specialised marine reinsurance companies, however, fluctuated greatly. Also, cooperation between interwar marine insurers and the formation of insurance groups set new trends of concentration for the future. Finally, even though Swedish marine insurance during some years induced losses the Swedish marine insurers never experienced true losses on their total businesses.

This thesis examines the subject of aviation insurance from the broad international market perspective, mainly covered by London, and the structure, content and interpretation of typical aviation insurance policies An historical background is provided to give an overview on the matter. Precedents from various jurisdictions have been noted. Because policies written for several types of insurance frequently contain provisions similar or analogous to those found in common aviation insurance policies, those provisions, and references to the few authors who have written on the matter, are quoted frequently.

To what extent should insureds expect compensation on interruption to their voyage by loss of possession or free use or disposal of their property where it remains undamaged? Marine insurance does not compensate for partial losses occasioned by delay. Recent authority (Masefield v Amlin Corporate Member) confirmed an insured could not recover for an actual total loss following capture where pirates would accept ransom then release the property. Property was not an actual total loss even after condemnation by a foreign tribunal (Panamanian Oriental Steamship Corporation v Wright), although condemnation might establish constructive total loss. Where the voyage becomes impossible by detention or embargo, the insured’s right to abandon to insurers for constructive total loss may be unpredictable (eg after one year’s duration in The Bamburi). In each scenario, insurers are excused making prompt payments, and from dealing themselves with the consequences of the peril. In each the insured is either uncompensated, or at best must wait. These authorities document an evolution; historically, English and American laws allowed the insured to abandon and recover for a total loss while these perils lasted, ignoring ongoing hopes of recovery. This thesis argues that a presumption of total loss still applies to all perils causing loss of possession. This appeared first in Continental treatises and was later applied in English law. No universal test of total loss applies equally to all marine perils. Instead, situations of loss of possession should be governed by peril-specific rules, including the presumption of total loss for perils causing loss of possession.

The long-standing concept of risk management in the financial sector has attracted more attention after the financial crisis of 2007–2008. In the context of ship finance, marine insurance has proven itself to be an effective tool to transfer certain shipping risks to insurers who are not directly involved in the ship finance projects. This thesis provides original suggestions concerning the role of marine insurance in ship finance, combining a financial perspective, an insurance perspective and a legal perspective. Marine insurance is a key risk management technique that fits into the general risk management process adopted by ship financiers. However, it is not necessarily the most appropriate technique in every particular case due to its limitations and costs. As a result, insurance gaps are identified to assist financiers in optimising the use of marine insurance and to help insurers to spot business opportunities. Marine insurance is a contract which is to be governed by and construed in accordance with the law. At the same time, marine insurance is a contract rather than a guarantee: if something goes wrong in the ship finance package and there is a marine policy, it should not be assumed that the policy represents money in the bank. Things can go wrong under the policy: apart from the legal risks relating to claims under the policy, the law itself may be a risk. In the context of ship finance, the risk transfer is not the only role of marine insurance. Other roles include, inter alia, reducing capital costs, improving the liquidity of shipowners and shipbuilders, and providing peace of mind for ship financiers. Nevertheless, such roles can only be created and sustained if the insurance contracts are carefully drafted and the legal risks are properly managed. The intention has been to state the law as it stands on October 28, 2017.

This paper deals with the pricing differences between a mutual co-operative underwriting system and a fixed-premium underwriting system in providing coverage for marine liability. There has been much debate in recent years within the marine liability underwriting industry over which method fosters more competition, and hence, lower premiums for shipowners who are required to carry such coverage in order to operate. This paper will look at the current mutual marine insurance industry (Protection & Indemnity Associations or P&I Clubs) to compare its pricing both before and after the entry into the market of the fixed-premium underwriters, using data from 1985-2000 that encompasses both a major loss cycle and normal cyclical pricing variations. This analysis will hopefully provide information on whether mutual premium levels for the P&I Clubs differed substantially with the entry of the fixed-price competitors. This is important for the individual shipowners belonging to these mutual underwriting associations, because any variation in premium pricing could mean the potential for either great savings or tremendous losses.<br>Master of Arts

The aim of this thesis is to enhance our understanding of Swedish marine insurers' choices of business strategies under the potentially difficult business circumstances of the interwar period 1918-1939. Little previous research exists on marine insurance during the interwar period. This is remarkable in the Swedish context since the Swedish economy has traditionally depended on its exports. The focus on Sweden is justified since the Swedish insurance market saw regulatory stability during the interwar period. It was also characterised by the coexistence of stock and mutual insurers, allowing this thesis to contribute with insights on potentially problematic insurance cartelisaton. This thesis employs a mixed methods design, including qualitative methods and regression analysis. To interpret results, this thesis employs insurance risk theory, cartel theory, theories on reinsurance and risk diversification, and agency theory. By employing this combination of theories, it is possible to explain choices and outcomes of adopted strategies both with reference to particularities of marine insurance and with reference to particularities of the two different organisational forms. The results show that the insurers conceived several new characteristics of their business environment as challenges and implemented both cartel strategies and company-specific strategies of risk diversification. Among the challenges were rapid inflation, rapidly decreasing prices and business volumes in shipping and trade, the introduction of motor ships, and the existence of naval mines on many trade routes. Also, exchange-rate fluctuations were considered to cause losses on established marine insurance contracts and rendered business results uncertain. Swedish insurers adopted cartel strategies from 1918 through The Swedish Association of Marine Underwriters (Sjöassuradörernas Förening) since they had anticipated a post-war crisis. Market division agreements were adopted for the most attractive market segments, but eventually price agreements became the primary cartel strategy, supported by prohibitions of competition. The work on price agreements sometimes increased the market efficiency since it reduced uncertainty, for instance in insurance of cargo with motor ships. Few price agreements were however adopted for the insurance of shipping since that market segment was dominated by mutual insurers, highlighting the difficulties of cartelisation in insurance markets inhabited by both stock and mutual insurers. The cartel further adopted reinsurance agreements to create barriers to entry in the Swedish marine insurance market. It however experienced prominent difficulties to implement the cartel strategies. One prominent difficulty of implementation was cheating. Also international competition created difficulties. The cartel companies therefore engaged in international cartelisation through The International Union of Marine Insurance (Internationaler Tranport-Versicherungs-Verband) from the late 1920s. This international cartel sought to reduce international competition by agreements not to compete in foreign markets. It also sought to manage the exchange-rate fluctuations of the early 1920s and the early 1930s by agreements among marine insurers, but it failed to obtain sufficient support. In spite of cartelisation, the returns on marine insurance were pushed down by the recognized challenges during the early 1920s, inflicting losses. The business however recovered and remained profitable throughout the 1930s, showing that the great depression was not as great as the deflation crisis in marine insurance. Exchange-rate fluctuations affected the international competitive strength of both stock and mutual insurers and additionally influenced the stock insurers' returns on established marine insurance contracts. The insurers were however compensated for the poor marine business results of the early 1920s by greater reliance than previously on reinsurers and by diversification among insurance lines, which rendered profits less negative than the returns on marine insurance. The business ceded to reinsurers on average inflicted losses during each of the first seven years of the 1920s. These losses were indirectly caused by World War I since that war had caused the establishment of new reinsurers in different countries, not the least in Scandinavia, and in turn caused over capacity during the 1920s. New contractual formulations evolved internationally to the benefit of ceding insurers, indicating information asymmetries. Exits became frequent among reinsurers. In effect, into the 1930s, ceding insurers internationally found it difficult to obtain obligatory reinsurance treaties. During the early 1920s, the Swedish stock marine insurers also increasingly diversified their insurance businesses among insurance lines. This process had been catalysed by World War I, was accelerated during the 1920s, and continued into the 1930s.<br>Syftet med denna avhandling är att förståeliggöra svenska marinförsäkringsbolags val av affärsstrategier under mellankrigstiden 1918-1939, en period som kännetecknades av potentiellt svåra affärsförhållanden. Försäkringsverksamhet är känslig för ekonomiska kriser, men har uppmärksammats mindre än bankverksamhet när det gäller mellankrigstiden. Inte minst marinförsäkring är känslig för ekonomiska kriser eftersom de försäkrade verksamheterna, sjöfart och handel, endast förekommer i den mån som transporterade varor efterfrågas. Tidigare forskning har endast i liten omfattning fokuserat på marinförsäkring, vilket ur ett svenskt perspektiv kan tyckas anmärkningsvärt med tanke på att den svenska ekonomin har i hög grad varit beroende av sjöburen handel. En studie av svensk marinförsäkring är motiverad ur ett internationellt perspektiv eftersom den svenska försäkringslagstiftningen förblev i stort sett oförändrad under perioden, vilket gör det rimligt att tolka marinförsäkringsbolags val av affärsstrategier som svar på ekonomiska omständigheter. Under mellankrigstiden var katellstrategier ett vanligt svar på svåra affärsförhållanden i olika verksamheter, men kartellisering var potentiellt problematisk i marinförsäkring eftersom den verksamheten är internationell och eftersom marinförsäkring är en heterogen produkt. Dessutom befolkades den svenska försäkringsmarknaden av både aktiebolag och ömsesidiga bolag, vilket är ett ytterligare potentiellt hinder för kartellisering. Studier av kartellisering under potentiallt svåra förutsättningar kan bidra med insikter om under vilka förutsättningar karteller uppstår, vilket ytterligare motiverar studien. Denna avhandling analyserar även två företagsspecifika riskdiversifieringsstrategier, som potentiellt kan kompensera för låg avkastning på mottagen försäkring, nämligen återförsäkring och diversifiering mellan försäkringsgrenar. Återförsäkring har av tidigare forskning framhållits som ett underutforskat område. Avhandlingen tillämpar både kvalitativa och kvantitativa undersökningsmetoder. För att uttolka de empiriska resultaten tillämpas riskteori för försäkring, kartellteori, återförsäkringsteori, riskdiversifieringsteori, samt incitamentsteori på företagsnivå (agency theory). Denna kombination av teorier gör det möjligt att förklara strategival med utgångspunkt både i marinförsäkringens karaktäristika och i de båda olika organisationsformers karaktäristika. Resultaten visar att försäkringsbolagen noterade ett antal nya affärsförhållanden som utmaningar och att dessa bolag implementerade både kartellstrategier och företagsspecifika riskdiversifieringsstrategier. Bland de noterade utmaningarna märks snabb inflation, snabbt fallande priser och affärsvolymer i sjöfart och handel, införandet av motorfartyg, samt sjöminor på många fartygsrutter. Försäkringsbolagen behärskade endast lite erfarenhet av risker associerade med motorfartyg och sjöminor, vilket gjorde riskbedömningar osäkra. Även växelkursfluktuationer uppfattades som utmaningar eftersom de orsakade förluster på etablerade marinförsäkringskontrakt och skapade problem att förutsäga affärsresultaten. Från 1918 antog svenska marinförsäkringsbolag kartellstrategier genom branschorganisationen Sjöassuradörernas Förening, detta eftersom de förväntade sig en efterkrigskris. Marknadsuppdelningsavtal infördes i attraktiva marknadssegment, men med tiden blev prisöverenskommelser den främsta kartellstrategin, understödd av avtal som förbjöd konkurrens. Arbetet med prisöverenskommelser ökade marknadseffektiviteten i vissa marknadssegment, detta genom att reducera osäkerheten i riskbedömningarna. Ett tydligt exempel på ett sådant marknadssegment är försäkring av varor transporterade med motorfartyg. Kartellen etablerade däremot få prisöverenskommelser för försäkring av sjöfart eftersom detta marknadssegment dominerades av ömsesidiga försäkringsbolag. Denna kontrast mellan varuförsäkring och sjöfartsförsäkring belyser svårigheterna med att kartellisera en försäkringsmarknad som befolkas både av aktiebolag och av ömsesidiga bolag. Kartellen antog också återförsäkringsavtal i syfte att skapa etableringshinder på den svenska försäkringsmarknaden. Den upplevde emellertid svårigheter att implementera överenskommelserna, såsom brott mot prisöverenskommelserna och mot konkurrensförbuden. Ytterligare svårigheter skapades av internationell konkurrens. Från slutet av 1920-talet deltog därför kartellbolagen i den internationella marinförsäkringskartellen Internationaler Tranport-Versicherungs-Verband (senare benämnd The International Union of Marine Insurance). Medlemsbolagen i denna internationella kartell skapade överenskommelser med innebörden att utländska försäkringstagare inte skulle erbjudas försäkring. Dessa överenskommelser syftade till att reducera den internationella konkurrensen. Denna kartell försökte också reducera effekterna för marinförsäkringsbolag av växelkursfluktuationer genom överenskommelser om hur växelkurser skulle beräknas i marinförsäkringsfrågor. Sådana försök gjordes både under de första åren av 1920-talet och under de första åren av 1930-talet. Det avsedda resultatet kunde emellertid inte nås, detta eftersom uppslutningen förblev otillräcklig. Trots kartelliseringen reducerades avkastningen på marinförsäkring till förlustnivåer under det tidiga 1920-talet. Avkastningen förbättrades sedan stegvis och förblev positiv under 1930-talet. I marinförsäkring var alltså den stora depression inte lika stor som deflationskrisen. Växelkursfluktuationer påverkade både aktiebolags och ömsesidiga bolags internationella konkurrenskraft. Dessutom påverkade växelkurserna aktiebolagens avkastning på etablerade marinförsäkringskontrakt. Försäkringsbolagen kompenserades för 1920-talets förlustresultat i marinförsäkring genom ökad cedering av risk till återförsäkringsbolag och genom diversifiering av de mottagna riskerna mellan olika försäkringsgrenar. Under 1920-talet var bolagens vinster därför mindre negativa än resultaten i marinförsäkring. Den affär som cederades till återförsäkringsbolag var i genomsnitt förlustbringande under vart och ett av 1920-talets första sju år. Dessa förluster orsakades indirekt av första världskriget, eftersom det kriget stimulerade etablering av nya återförsäkringsbolag, detta i olika länder och inte minst i Skandinavien. I förlängningen skapade första världskriget därmed överkapacitet på återförsäkringsmarknaden. Nya kontraktsformuleringar introducerades internationellt till de cederande bolagens fördel. Detta förhållande indikerar informationsasymmetrier i relationen mellan cederande och mottagande försäkringsbolag. Många återförsäkringsbolag lämnade marknaden. Resultatet blev att cederande bolag under början av 1930-talet i olika länder fick svårigheter att sluta obligatoriska återförsäkringsavtal. Under början av 1920-talet diversifierade aktiebolagen också sin verksamhet mellan olika försäkringsgrenar. Denna process katalyserades av första världskriget, accelererade under början av 1920-talet och fortsatte in på 1930-talet.

This thesis is the only study there is of the workings of the Financial Ombudsman Service ('FOS') and a comparison between court and FOS attitudes and approaches to insurance cases. A court and the FOS may decide matters differently because the FOS does not have to apply the law strictly, whilst a court does. The author of this thesis has examined the FOS and Financial Services Authority ('FSA') websites, handbooks and other material, and all of the near monthly journals of Ombudsman News ('O.N.') since the FOS began in 2001, analysing it against the law to determine the question of this thesis: whether the FOS should in fact apply the law strictly, and not allow principles of fairness and reasonableness to override the law in the particular circumstances of a case. Should certainty of outcome and of applying law established and modified over hundreds of years be sacrificed to allow the FOS to apply its overriding discretion in the interests of justice in a relatively few cases? Should both insurers and insureds be able to obtain legal advice on their relative positions, without that advice having to mention unpredictable outcomes if the ombudsman chooses not to follow the strict legal position? If the law does not offer the consumer insured enough protection, should the FOS be the forum that does, and if so, does it give enough protection? This study does not look at the decisions of the Insurance Ombudsman Bureau ('IOB') which preceded the FOS. Where a point is not dealt with below, it has not been highlighted in FOS publications to date and it is unclear how relevant IOB decisions on that point will be.

The purpose of this research study is to examine the present state of Insurance law in Cameroon with particular reference to motor insurance, bringing out the fact that with the exception of certain areas, there exist two systems of insurance law in Cameroon; one in the English-speaking part and the other in the French-speaking part. This work proposes that this distinction ought not to continue and advocates the unification of insurance laws. For reason of space not all the fundamental principles of insurance law and regulation will be attempted: hence some valuable material cannot be included in this thesis. Motor vehicle insurance was chosen for these reasons. First, it is the most common form of insurance in both English and French-speaking Cameroon. Second, it is, in practical terms, the most important type of liability insurance. It is therefore, of greatest interest and relevance to the Cameroonian public comprising insurance companies, policyholders, victims of accidents and the dependants of victims. This has led the state to intervene in regulating motor vehicle insurance a great deal more than in other branches of insurance. The approach adopted throughout is a comparative one, involving English, French and Cameroonian law. , In order to provide the reader with a background to the existence of the two legal systems in Cameroon, the introductory chapter traces the evolution of law with particular reference to the colonial era. The Reason for Government Regulation of certain aspects of insurance law in the countries involved is then examined (Chapter One). This intervention has been exercised through Government Control of Insurance Concerns (Chapter Two), Compulsory Motor and other Insurances (Chapter Three), the provision of a .Motor Insurance Fund (Chapter Four) and Regulation of Insurance Intermediaries (parts of Chapter Six). In the above areas where the government has intervened there now exists considerable uniformity in insurance law and practice throughout the Republic of Cameroon. However, there are still other aspects of the insurance transaction in which there are no uniform laws (see parts of Chapter Three dealing with the conceptual basis of liability and parts of Chapter Six dealing with Insurance Intermediaries and Disclosure. Further, see Chapters Five, Seven and Eight dealing with the Formation of the Insurance Contract, the Construction of the Insurance Contract and the Settlement Process respectively. Finally, this work concludes with proposals for reforming the present laws based on the material discussed, and in particular, a proposal for a Uniform Insurance Code for Cameroon.

The insurable interest doctrine is one of the fundamental principles in insurance law. It has been long established that it can affect whether the contract is void and whether an assured can make a claim. It has played a role in distinguishing insurance contracts from other risk-transferring contracts, preventing wager policies and moral hazards, etc. However, since the nineteenth century, there has been a debate about what can be sufficient to constitute an insurable interest. Also, along with other issues with insurable interest, it has been argued that the requirement is nowadays unnecessary and may have had a negative effect on the assured’s position. Thus, the proposals to remove the requirement and to widen the concept of insurable interest, etc. have arisen globally amongst academics, the courts and legal practitioners. The UK has thus responded to the call for reform by the Law Commissions conducting a review project on insurable interest. They have in detail discussed the problems with insurable interest and then set out arguments for both retaining and repealing it. They then published the proposals for the purpose of clarifying and ascertaining the law on insurable interest. To benefit the discussion on reform in this area of law in the UK, the reform of the law on insurable interest in other countries, such as in Australia, New Zealand and China has also been studied. Without a deep understanding of the background and theory of insurable interest, it can be difficult to conclude whether it should be retained and which test for it should be adopted. In order to make it clear, the history and pure theory of insurable interest is discussed in Chapters 1 and 2. Chapter 3 then sets out the problems with the requirement of insurable interest derived from both law and practice. The remaining three chapters, i.e. Chapters 4, 5 and 6 have, from a comparative perspective, introduced the law on insurable interest in indemnity insurance, including marine insurance and relevant reforms. Indeed, other jurisdictions have adopted different approaches to the requirement of insurable interest at the time of contract and its definitions seem to be distinct from those in the UK. Finally, in conclusion, the core issue will be answered for the purpose of unifying the law on insurable interest in indemnity insurance and promoting the prosperity of the insurance industry: that is, whether the insurable interest is still required nowadays, and, if it is, when it must attach; additionally, whether an economic interest is sufficient to be an insurable interest or whether the legal relation to the subject matter of insurance is still needed.