Warranties in Marine Insurance 1st Edition by Baris Soyer ISBN 1859416152 9781859416150

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ISBN 10: 1859416152 
ISBN 13: 9781859416150
Author: Baris Soyer

Warranties in Marine Insurance 1st Table of contents:

1 Warranties in general
I – Meaning of the term “warranty”
(A) The term “warranty” in contract law
(B) The term “warranty” in insurance law
(C) Warranty needs to be distinguished from misrepresentation
II – Warranties in marine insurance
(A) Historical development of the warranty regime in marine insurance
(B) Classification of marine warranties
(a) Classification of promissory warranties according to the time of undertaking
(b) Classification of promissory warranties according to the nature of the undertaking
(c) Classification of promissory warranties according to their structure
2 Express warranties
I – Formation of express warranties and necessity for inclusion in policy
II – Construction of express warranties
(A) Necessity for construction and role of precedent
(B) Principles adopted by courts for construction of express warranties
(a) Ordinary meaning of words
(b) Rise of the “factual matrix” and its function in identifying the commercial purpose of warranties
(c) Construing warranties in accordance with commercial common sense
(d) Rules (canons) of construction
(i) Ejusdem generis
(ii) Expressio unius est exclusio alterius
(iii) Contra proferentem rule
III – Standard examples of express warranties
(A) Express warranties as to future events
(a) Warranties as to geographical limits (locality warranties)
(b) Institute warranty as to towage and salvage services
(c) Warranties as to the cargo carried
(d) Laid up and out of commission warranties
(e) Survey warranties
(f) Premium warranties
(g) Warranty of good safety
(h) Cargo warranties
(B) Continuing express warranties
(a) Warranty of nationality
(b) Warranty of neutrality
(c) Institute disbursements warranty
(d) Institute classification warranty
IV – Distinguishing other express terms of the marine insurance contract from warranties
(A) Conditions in marine insurance contracts
(a) Condition precedent to the attachment (commencement) of the risk
(b) Condition precedent to the liability of the insurer
(B) Innominate (intermediate) terms in marine insurance contracts
(a) Innominate terms as traditionally understood
(b) Innominate terms concerning claim clauses
(C) Exclusion clauses in marine insurance contracts
(a) Clauses that exclude the insurer from liability for a particular risk
(b) Clauses delimiting (describing) the risk (suspensory provisions)
(D) Mere conditions (collateral stipulations/technical warranties)
(E) Cancellation clauses in marine insurance contracts
3 Implied warranty of seaworthiness
I – Meaning, nature and extent of seaworthiness in maritime law
(A) Lack of unique definition of seaworthiness in maritime law
(B) Nature of seaworthiness
(C) Categories of matters to which seaworthiness extends
(a) Structure and other technical equipment of the vessel
(i) The hull
(ii) Machinery and other mechanical equipment
(iii) Hatches, pipes and pumps
(iv) Tackle and steering mechanism
(v) Mere temporary defect
(b) Design and construction of the vessel
(c) Latent defect in hull or machinery
(d) Navigational equipment/aids
(e) Certificates and documents necessary for the protection of the vessel and cargo
(f) Sufficiency of fuel/coal, provisions and medicines
(g) Efficiency/competency of the crew
(h) Stowage and loading
(i) Pilot
II – Implied warranty of seaworthiness in marine insurance
(A) The need to regulate seaworthiness as a defence in marine insurance
(B) Voyage policies
(a) Extent of the implied warranty of seaworthiness in voyage policies
(b) Doctrine of stages
(i) Physical factors
(ii) Stages for coaling and bunkering
(c) No continuing warranty of seaworthiness
(C) Time policies
(a) Legal situation in respect of seaworthiness in time policies
(i) Unseaworthiness when the ship is sent to sea
(ii) Privity of the assured
(iii) Loss attributable to unseaworthiness and causation problem
(D) Mixed policies
(E) P&I club cover
(F) Burden of proof in unseaworthiness allegations
III – Potential legal implications of ISM and ISPC Codes and Marine Labour Convention on provisions relating to seaworthiness
(A) Potential legal implications of the ISM Code on the provisions relating to seaworthiness
(a) Introduction
(b) Implementation and scope of the ISM Code
(c) Implications of the ISM Code on provisions relating to seaworthiness
(i) Implications of the ISM Code on the implied warranty of seaworthiness
(ii) Burden of proof in unseaworthiness allegations
(iii) Section 39(5) of the MIA 1906
(iv) Legal implications of the ISM Code for particular forms of policy
(B) Potential legal implications of the ISPS Code on provisions relating to seaworthiness
(a) Background, implementation and nature of the ISPS Code
(b) Scope of the Code
(c) Implications of the ISPS Code on provisions relating to seaworthiness
(i) Implied warranty of seaworthiness
(ii) Section 39(5) of the MIA
(iii) Various market clauses
(C) Potential legal implications of the MLC 2006 on provisions relating to seaworthiness
(a) Background, implementation and nature of the MLC 2006
(b) Potential impact on provisions concerning seaworthiness
4 Other implied warranties 135
I – Implied warranty of portworthiness
(A) Nature of the implied warranty of portworthiness
(B) Scope of the implied warranty of portworthiness
II – Implied warranty of cargoworthiness
(A) Meaning and nature of the implied warranty of cargoworthiness
(B) Scope of the implied warranty of cargoworthiness
III – Implied warranty of legality
(A) Why has “legality of adventure” been regulated as a warranty?
(a) Insurer’s position
(b) Assured’s position
(B) Scope of the implied warranty of legality
(a) Illegality of the adventure insured
(i) By statute
(ii) By common law
(iii) By prize law
(iv) By orders made by the Queen/King
(v) By EU legislation and other international instruments
(b) Illegality during the performance of the adventure insured
(C) Miscellaneous issues
(a) Illegality must form part of the insured adventure
(b) Illegality must arise under English law
(c) Potential effect of recent international developments on the implied warranty of legality
(d) Implied warranty of legality: A sui generis warranty?
5 Nature of marine warranties
I – Traditional warranty regime
(A) Exact (strict) compliance is required
(B) No materiality and causal link required
(C) Breach of warranty cannot be remedied
(D) No excuse for breach of a warranty – Exceptions to the general rule
(E) Effect of breach of marine insurance warranties
(a) Meaning of breach and burden of proof
(b) Legal effect of breach
(i) Effect of breach of warranties which relate to a period before the attachment of the risk
(ii) Effect of breach of warranties which relate to a period after the attachment of the risk
II – Judicial attempts to soften the legal effects of the warranty regime
(A) Adopting a narrow construction
(B) Divisibility or severability of the contract of insurance
(C) Adopting an alternative contractual status – Power of judicial construction
(D) Using contractual and statutory devices to qualify the warranty regime?
III – New warranty regime – Insurance Act 2015 and the future
(A) Suspension of the cover rather than automatic discharge
(B) Loss occurring during the period of suspension due to breach of a warranty (term) unrelated to the loss
(C) Contracting out
6 Waiver of breach of marine insurance warranties 189
I – Waiver of breach of marine insurance warranties before the breach is committed
(A) Waiver of breach by conduct
(B) Waiver of breach by an express term
(C) Held covered clauses
(a) Introduction
(b) Held covered clauses in contemporary practice
(i) Scope and nature of the clause
(ii) Notice requirement
(iii) Agreement on any additional premium and amended terms of cover
(D) Waiver of breach of warranty by Inchmaree Clause?
II – Waiver of breach of marine insurance warranties after the breach is committed
(A) The position under traditional warranty regime
(a) Impact of The Good Luck : A dramatic change in law
(b) Application of the promissory estoppel doctrine (equitable forbearance) in the context of breach of a marine warranty
(i) Unequivocal conduct (representation)
(ii) Reliance
(iii) Being inequitable
(B) The position following the implementation of the Insurance Act 2015
III – Waiver and special position of the warranty of legality
7 Warranty type statutory provisions 218
I – Voyage conditions akin to continuing warranties
(A) Change of voyage
(B) Deviation
(C) Delay in voyage
(D) Voyage conditions and standard Institute Clauses
II – Voyage conditions similar to warranties that need to be satisfied at a period before the attachment of the risk
(A) Alteration of port of departure and sailing for different destination
(B) Delay in commencement of the voyage
III – Potential impact of Insurance Act 2015 on voyage conditions
8 Law is reformed – What is next?
Appendices
Legislation
1 – Marine Insurance Act 1906
2 – Insurance Act 2015
Standard contracts
3 – Institute Time Clauses Hulls (1 November 1995)
4 – International Hull Clauses (1 November 2003)
5 – Institute Cargo Clauses (A) (1 January 2009)
6 – Institute Cargo Clauses (B) (1 January 2009)
7 – Institute Cargo Clauses (C) (1 January 2009)
8 – Institute warranties (1 July 1976)

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Tags: Baris Soyer, Marine Insurance, Warranties