International Cargo Insurance

814 Pages·2012·12.128 MB·English

by  John Dunt

INTERNATIONAL
CARGO INSURANCE
LLOYD’S SHIPPING LAW LIBRARY
Series editors: Andrew W. Baker Q.C. and Hatty Sumption
LLOYD’S SHIPPING LAW LIBRARY
The Ratifi cation of Maritime Conventions Marine Cargo Insurance
edited by The Institute of Maritime Law by John Dunt
University of Southampton (2009)
(looseleaf)
Shipping and the Environment
second edition
The Law of Shipbuilding Contracts
by Colin de la Rue and
fourth edition
Charles B. Anderson
by Simon Curtis
(2009)
(2012)
Ship Registration: Law and Practice
Marine Insurance Law and Practice
second edition
second edition
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by Francis Rose
Edward Watt
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(2009)
Ship Sale & Purchase Time Charters
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by Iain Goldrein, Q.C., Matt Hannaford by Terrence Coghlin, Andrew W. Baker,
and Paul Turner Julian Kenny and John D. Kimball
(2012) (2008)
Admiralty Jurisdiction and Practice Voyage Charters
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by Nigel Meeson and John A. Kimbell by Julian Cooke,
(2011) Timothy Young, Q.C., Andrew Taylor,
John D. Kimball, David Martowski
and LeRoy Lambert
Berlingieri on Arrest of Ships
(2007)
fi fth edition
by Francesco Berlingieri
Bills of Lading
(2011)
by Richard Aikens, Richard Lord
and Michael Bools
The Law of Tug and Tow and (2006)
Offshore Contracts
third edition Bareboat Charters
by Simon Rainey second edition
(2011) by Mark Davis
(2005)
Laytime and Demurrage
Enforcement of Maritime Claims
sixth edition
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by John Schofi led
by D. C. Jackson
(2011)
(2005)
Marine Insurance Legislation Limitation of Liability
fourth edition for Maritime Claims
by Robert Merkin fourth edition
(2010) by Patrick Griggs, Richard Williams
and Jeremy Farr
P&I Clubs Law and Prace (2005)
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Marine War Risks
by Steven J. Hazelwood and David Semark
(2010) third edition
by Michael D. Miller
(2005)
The York-Antwerp Rules
third edition Merchant Shipping Legislation
by N. Geoffery Hudson and Michael D. Harvey second edition
(2009) by Aengus R. M. Fogarty
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London Maritime Arbitration
third edition The Law of Ship Mortgages
by Clare Ambrose and Karen Maxwell by Graeme Bowtle and Kevin McGuinness
(2009) (2001)
INTERNATIONAL
CARGO
INSURANCE
EDITED BY
JOHN DUNT
Consultant
Clyde & Co LLP
Visiting Senior Research Fellow
Institute of Maritime Law, University of Southampton
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© 2012 John Dunt and Contributors, except as otherwise indicated
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ISBN: 978–1–84311–947–0
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PREFACE
The purpose of this book refl ects the aim of Michael Wilford in the fi rst edition of T ime
Charters , the founding volume of the Lloyd's Shipping Law Library, which is to provide the
busy practitioner with the legal authorities relevant to issues they may encounter with regard
to international cargo insurance. With this in mind each chapter of the book is structured
similarly. In particular, the English and United States chapters adopt a parallel approach
to the issues. So far as the jurisdictions based on the 1906 Act are concerned (as well as
South Africa), the law is the same in many respects to English law so a strict approach
would be repetitive but these chapters nevertheless follow the general structure of the
English and United States chapters while concentrating on the differences, particularly
differences with English law. The approach of the civil lawyers to some problems varies
from that of the common lawyers and, indeed, the way that the civil lawyers categorise
some issues is not the same, so a slightly different structure is needed. Nevertheless, in
general the civil law chapters follow the overall scheme.
The book is a companion volume to M arine Cargo Insurance and, in part, seeks to
achieve the goal suggested by Professor JP Van Niekerk, in his review of that book, where
he proposed that there could have been more reference to decisions in jurisdictions (other
than English) involving marine cargo insurance. In view of the pivotal role which marine
cargo insurance plays in international trade it is particularly important that there should be
harmony in the approach adopted in different countries to the insurance cover provided,
particularly where standard insurance terms are involved. A key to harmony is the ability
to compare the same issues which arise in marine cargo insurance in different jurisdictions.
The role of the London market in the business of marine insurance has, for some,
amongst whom I count myself, disguised the fact that marine insurance as we know
it today was developed in Italy and owes its origins as much to the civil law as to the
common law. The need for harmony in mercantile and commercial law was recognised by
Lord Mansfi eld. The same applies with as much force today. Developments in both law and
practice pass from one jurisdiction to another. For example, the decision in the Supreme
Court in England in T he Cendor MOPU, that inherent vice is only excluded where it is the
sole cause of the loss, had already been anticipated in other jurisdictions. One of the most
signifi cant revisions in the Institute Cargo Clauses 2009 was the extension of the duration
of the risk to the time when the goods were “fi rst moved”, to include forklift damage inside
warehouses, but this cover had already been provided by the Norwegian Cargo Clauses.
An international Convention to harmonise marine insurance law is not a realistic possibility,
but each system has much to learn from the others and a degree of harmonisation may be
achieved through a greater understanding of the differences in each jurisdiction. Ideally, the
v
PREFACE
insurance cover for the cargo should be determined and assessed in the same way by the
law and practice in each jurisdiction. As Lord Mansfi eld said, “… from the same premises,
the sound conclusions of reason and justice must necessarily be the same” .
I would like to thank Professor Yvonne Baatz of the Institute of Maritime Law,
Southampton University, for reading Chapter 2 and making numerous important
suggestions on the issues of jurisdiction and applicable law, as well as for kindly reading
the introductory chapter. My colleague William Melbourne of Clyde & Co read Chapter 3,
English law, and made many telling suggestions for improvement. Avv. Francesco Siccardi
guided me to as the common origins of the civil law and answered my queries arising on
the civil law chapters. Any errors or omissions, of course, remain mine.
My thanks also to the research assistants at the Institute of Maritime Law, University
of Southampton, for all their help throughout the work. Miss Adebowale Awofeso of the
Institute kindly prepared the List of Abbreviations so necessary to a work of this kind even
though I have attempted to ensure that the reader is not burdened with two many acronyms
in the text.
T he team at Informa including, in particular, Chris Betney and Nicola Whyke have been
particularly patient and supportive in the concluding part of the production of the book.
I would also like to thank Eira Robertson for typing the book with her usual speed and
unerring accuracy.
I t remains to thank the contributing authors for their generosity in the provision of their
time, their knowledge and their expertise, without which the book could never have been
written.
Finally, I must thank my family for their patience and support.
The law is stated as at the early summer of 2012.
John Dunt
Guildford
October 2012

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OUTLINE CONTENTS
Page
Preface v
Authors’ Biographies xxxiii
Abbreviations xxxix
Table of Cases xlvii
Table of Legislation lxiii
1 History and Harmonisation 1
2 Jurisdiction and Applicable Law 13
3 English Law and Practice 49
4 Hong Kong Law and Practice 111
5 Singapore Law and Practice 129
6 Japan: The Insurance of International Cargo Business 145
7 Australian Law and Practice 171
8 United States Law and Practice 205
9 Italian Law and Practice 257
10 German Law and Practice 311
11 French Law and Practice 371
12 Norwegian Cargo Insurance 405
13 The People’s Republic of China Law and Practice 441
14 South African Law of Cargo Insurance 465
15 Comparative Analysis 513
APPENDICES 553
Index 705
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DETAILED CONTENTS
Preface v
Authors’ biographies xxxiii
Abbreviations xxxix
Table of Cases xlvii
Table of Legislation lxiii
1 HISTORY AND HARMONISATION 1
John Dunt
The history of Marine Cargo Insurance 1
Origins in European mercantile and civil law 1
The common European form of policy: the SG Form 4
The development of insurance markets 4
Substantive law and contract terms 5
The harmonisation of Marine Cargo Insurance 6
Attempts to harmonise marine insurance law 6
Interpretation and construction: civil and common law 10
2 JURISDICTION AND APPLICABLE LAW 13
John Dunt
Introduction 13
Scope and structure of the chapter 13
Jurisdiction 14
European law 14
The Judgments Regulation 14
Absence of choice 15
Extent of freedom of choice: formalities 15
Goods in transit by seagoing ships and connected risks 16
“Large risks” 17
The exclusive and mandatory effect of a jurisdiction clause 18
The court “fi rst seised” 19
English domestic law 20
When does English domestic law apply rather than European law? 20
Summary of the general rules 20
Defendant within the jurisdiction 21
Service outside the jurisdiction 21
The most appropriate or convenient forum 22
A choice of English law 22
The effect of a choice of English jurisdiction 23
The US Service of Suit Clause 24
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