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[F.A.Q.]
Niue Sessional Legislation |
LAWS OF NIUE
Act 112 of 1908 (NZ) - 4 August 1908
ANALYSIS
Title
1.
Short Title, etc.
2.
Interpretation
Marine Insurance
3. Marine insurance
defined. Mixed sea and land risks
4.
Marine adventure and maritime perils defined
Insurable Interest
5. Avoidance of wagering
or gaming contracts
6. Insurable
interest defined
7. When interest must
attach
8. Defeasible or contingent
interest
9. Partial
interest
10.
Reinsurance
11.
Bottomry
12. Master's and seamen's
wages
13. Advance
freight
14. Charges of
insurance
15. Quantum of
interest
16. Assignment of interest
Insurable Value
17. Measure of insurable
value
Disclosure and Representations
18. Disclosure by
assured
19. Disclosure by agent effecting insurance
20. Representations pending negotiation of contract
21. When contract is deemed to
be concluded
The Policy
22. Contract must be
embodied in policy
23. What policy
must specify
24. Signature of
insurer
25. Designation of
subject-matter
26. Failure to execute
and stamp policy
27. Voyage and time
policies
28. Valued
policy
29. Unvalued
policy
30. Floating policy by ship or
ships
31. Premium to be
arranged
32. Construction of terms in
policy
Double Insurance
33. Double
insurance
Warranties, etc.
34. Nature of
warranty
35. When breach of warranty
excused
36. Express
warranties
37. Warranty of
neutrality
38. No implied warranty of
nationality
39. Warranty of good
safety
40. Warranty of seaworthiness
of ship
41. No implied warranty that
goods are seaworthy
42. Warranty of
legality
The Voyage
43. Implied condition as to commencement of risk
44. Alteration of port of
departure
45. Sailing for different
destination
46. Change of
voyage
47. Deviation
48. Several ports of
discharge
49. Delay in
voyage
50. Excuses for deviation or
delay
Assignment of Policy
51. When and how policy is assignable
52. Assured who has no interest cannot assign
The Premium
53. Policy effected through broker
54. Effect of receipt on policy
Loss and Abandonment
55. Included and excluded losses
56. Partial and total loss
57. Actual total loss
58. Missing ship
59. Effect of transhipment, etc.
60. Constructive total loss defined
61. Effect of constructive total loss
62. Notice of abandonment
63. Effect of abandonment
Partial Losses (Including Salvage and General Average and Particular Charges)
64. Particular average loss
65. Salvage charges
66. General average loss
Measure of Indemnity
67. Extent of liability of insurer for loss
68. Total loss
69. Partial loss of ship
70. Partial loss of freight
71. Partial loss of goods, merchandise, etc.
72. Apportionment of valuation
73. General average contributions and salvage charges
74. Liabilities to third parties
75. General provisions as to measure of indemnity
76. Particular average warranties
77. Successive losses
78. Suing and labouring clause
Rights to Insurer on Payment
79. Right of subrogation
80. Right of contribution
81. Effect of under-insurance
Return of Premium
82. Enforcement of return
83. Return by agreement
84. Return for failure of consideration
Mutual Insurance
85. Modification of Act in case of mutual insurance
Supplemental
86. Ratification by assured
87. Implied obligations varied by agreement or usage
88. Reasonable time, etc., a question of fact
89. Application of rules of common law
90. Slip as evidence
Schedules
----------------
Act 112 of 1908 (NZ)
An Act to
consolidate certain enactments of the General Assembly relating to marine
insurance
[4 August 1908
1. Short Title, etc. - (1) The Short Title of this Act is the Marine Insurance Act 1908.
(2) This Act is a
consolidation of the enactments mentioned in the First Schedule
hereto.
(3) All matters and
proceedings commenced under those enactments, and pending or in progress on the
coming into operation of this
Act, may be continued, completed, and enforced
under this
Act.
2.
Interpretation - In this Act, if not
inconsistent with the context, -
"Action" includes counterclaim and set-off;
"Freight" includes the profit derivable by a shipowner from the employment of his ship to carry his own goods or movables, as well as freight payable by a third party, but does not include passage money;
"Movables" means any movable tangible property other than the ship, and includes money, valuable securities, and other documents;
"Policy" means a marine policy.
Cf. 1907, No. 24, s. 91
Marine Insurance
3.
Marine insurance defined.
Mixed sea and land
risks - (1) A contract of marine
insurance is a contract whereby the insurer undertakes to indemnify the assured,
in manner and to the extent
thereby agreed, against marine losses - that is to
say, the losses incident to marine
adventure.
(2) A contract of
marine insurance may, by its express terms or by usage of trade, be extended so
as to protect the assured against
losses on inland waters or on any land risk
which may be incidental to any sea
voyage.
(3) Where a ship in course
of building, or the launch of a ship, or any adventure analogous to a marine
adventure, is covered by a
policy in the form of a marine policy, the provisions
of this Act, in so far as applicable, shall apply thereto; but, except as
provided
by this section, nothing in this Act shall alter or affect any rule of
law applicable to any contract of insurance other than a contract
of marine
insurance as defined by this Act.
Cf. 1907, No. 24, ss. 2, 3
4.
Marine adventure and maritime perils defined
- (1) Subject to the provisions of this
Act, every lawful marine adventure may be the subject of a contract of marine
insurance.
(2) In particular there
is a marine adventure where -
(a) Any ship, goods, or other movables (such property being hereinafter referred to as "insurable property") are exposed to maritime perils;
(b) The earning or acquisition of any freight, passage money, commission, profit, or other pecuniary benefit, or the security for any advances, loan, or disbursements, is endangered by the exposure of insurable property to maritime perils;
(c) Any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property by reason of maritime perils.
(3)
"Maritime perils" means the perils consequent on or incidental to the navigation
of the sea-that is to say, perils of the seas,
fire, war perils, pirates,
rovers, thieves, captures, seizures, restraints, and detainments of princes and
peoples, jettisons, barratry,
and any other perils, either of the like kind or
designated by the policy.
Insurable Interest
5.
Avoidance of wagering or gaming contracts
- (1) Every contract of marine insurance
by way of gaming or wagering is
void.
(2) A contract of marine
insurance is deemed to be a gaming or wagering contract -
(a) Where the assured has not an insurable interest as defined by this Act, and the contract is entered into with no expectation of acquiring such an interest; or
(b) Where the policy is made "interest or no interest", or "without further proof of interest than the policy itself", or "without benefit of salvage to the insurer", or subject to any other like term:
Provided that where there is no possibility of salvage a policy may be effected without benefit of salvage to the insurer.
Cf. 1907, No. 24, s. 5
6.
Insurable interest defined - (1) Subject
to the provisions of this Act, every person has an insurable interest who is
interested in a marine
adventure.
(2) In particular a
person is interested in a marine adventure where he stands in any legal or
equitable relation to the adventure,
or to any insurable property at risk
therein, in consequence of which he may benefit by the safety or due arrival of
insurable property,
or may be prejudiced by its loss, or by damage thereto, or
by the detention thereof, or may incur liability in respect thereof.
Cf. 1907, No. 24, s. 6
7.
When interest must attach - (1) The
assured must be interested in the subject-matter insured at the time of the
loss, though he need not be interested when
the insurance is
effected:
Provided that where the
subject-matter is insured "lost or not lost", the assured may recover although
he may not have acquired his
interest until after the loss, unless at the time
of effecting the contract of insurance the assured was aware of the loss and the
insurer was not.
(2) Where the
assured has no interest at the time of the loss, he cannot acquire interest by
any act or election after he is aware
of the loss.
Cf. 1907, No. 24, s. 7
8.
Defeasible or contingent interest - (1) A
defeasible interest is insurable, as also is a contingent
interest.
(2) In particular, where
the buyer of goods has insured them he has an insurable interest,
notwithstanding that he might at his election
have rejected the goods, or have
treated them as at the seller's risk, by reason of the latter's delay in making
delivery or otherwise.
Cf. 1907, No. 24, s. 8
9.
Partial interest - A partial interest of
any nature is insurable.
Cf. 1907, No. 24, s. 9
10
Reinsurance - (1) The insurer under a
contract of marine insurance has an insurable interest in his risk, and may
reinsure in respect of it.
(2)
Unless the policy otherwise provides, the original assured has no right or
interest in respect of such reinsurance.
Cf. 1907, No. 24, s.10
11.
Bottomry - The lender of money on
bottomry or respondentia has an insurable interest in respect of the
loan.
Cf. 1907, No. 24, s. 11
12.
Master's and seamen's wages - The master
or any member of the crew of a ship has an insurable interest in respect of his
wages.
Cf. 1907, No. 24, s. 12
13.
Advance freight - In the case of advance
freight, the person advancing the freight has an insurable interest in so far as
such freight is not repayable
in case of loss.
Cf. 1907, No. 24, s.13
14.
Charges of insurance - The assured has an
insurable interest in the charges of any insurance which he may
effect.
Cf. 1907, No. 24, s.14
15.
Quantum of interest - (1) Where the
subject-matter insured is mortgaged, the mortgagor has an insurable interest in
the full value thereof, and the mortgagee
has an insurable interest in respect
of any sum due or to become due under the
mortgage.
(2) A mortgagee,
consignee, or other person having an interest in the subject-matter insured may
insure on behalf and for the benefit
of other persons interested as well as for
his own benefit.
(3) The owner of
insurable property has an insurable interest in respect of the full value
thereof, notwithstanding that some third
person may have agreed, or be liable,
to indemnify him in case of loss.
Cf. 1907, No. 24, s.15
16.
Assignment of interest - (1) Where the
assured assigns or otherwise parts with his interest in the subject-matter
insured, he does not thereby transfer to
the assignee his rights under the
contract of insurance, unless there is an express or implied agreement with the
assignee to that
effect.
(2) The
provisions of this section do not affect a transmission of interest by operation
of law.
Cf. 1907, No. 24, s. 16
Insurable Value
17.
Measure of insurable value - Subject to
any express provision or valuation in the policy, the insurable value of the
subject-matter insured must be ascertained
as follows:
(a) In insurance on ship the insurable value is the value, at the commencement of the risk, of the ship, including her outfit, provisions and stores for the officers and crew, money advanced for seamen's wages, and other disbursements (if any) incurred to make the ship fit for the voyage or adventure contemplated by the policy, plus the charges of insurance upon the whole; and, in the case of a steamship, includes also the machinery, boilers, and coals and engine stores if owned by the assured; and, in the case of a ship engaged in a special trade, the ordinary fittings requisite for that trade;
(b) In insurance on freight, whether paid in advance or otherwise, the insurable value is the gross amount of the freight at the risk of the assured, plus the charges of insurance;
(c) In insurance on goods or merchandise the insurable value is the prime cost of the property insured, plus the expenses of and incidental to shipping and the charges of insurance upon the whole;
(d) In insurance on any other subject-matter the insurable value is the amount at the risk of the assured when the policy attaches, plus the charges of insurance.
Cf. 1907, No. 24, s. 17
Disclosure and Representations
18.
Disclosure by assured - (1) Subject to
the provisions of this section, the assured must disclose to the insurer, before
the contract is concluded, every
material circumstance known to the assured, and
the assured is deemed to know every circumstance which, in the ordinary course
of
business, ought to be known by him. If the assured fails to make such
disclosure, the insurer may avoid the
contract.
(2) Every circumstance
is material which would influence the judgment of a prudent insurer in fixing
the premium or determining whether
he will take the
risk.
(3) In the absence of
inquiry the following circumstances need not be disclosed,
namely:
(a) Any circumstance which diminishes the risk;
(b) Any circumstance known or presumed to be known to the insurer. The insurer is presumed to know matters of common notoriety or knowledge, and matters which an insurer in the ordinary course of his business, as such, ought to know;
(c) Any circumstance as to which information is waived by the insurer;
(d) Any circumstance which it is superfluous to disclose by reason of any express or implied warranty.
(4)
Whether any particular circumstance which is not disclosed is material or not is
in each case a question of
fact.
(5) The term "circumstance"
includes any communication made to or information received by the
assured.
Cf. 1907, No. 24, s. 18
19.
Disclosure by agent effecting insurance -
Subject to the provisions of the last preceding section as to circumstances
which need not be disclosed, where an insurance is effected
for the assured by
an agent, the agent must disclose to the insurer -
(a) Every material circumstance known to himself; and an agent to insure is deemed to know every circumstance which in the ordinary course of business ought to be known by him or to have been communicated to him; and
(b) Every material circumstance which the assured is bound to disclose, unless it comes to his knowledge too late to communicate it to the agent.
Cf. 1907, No. 24, s. 19
20.
Representations pending negotiation of contract
- (1) Every material representation made
by the assured or his agent to the insurer during the negotiations for the
contract, and
before the contract is concluded, must be true. If it is untrue,
the insurer may avoid the
contract.
(2) A representation is
material which would influence the judgment of a prudent insurer in fixing the
premium or determining whether
he will take the
risk.
(3) A representation may be
either a representation as to a matter of fact or as to a matter of expectation
or belief.
(4) A representation
as to a matter
of fact is true if it is substantially correct-that is to say, if the difference
between what is represented and what is
actually correct would not be considered
material by a prudent insurer.
(5)
A representation as to a matter of expectation or belief is true if it is made
in good faith.
(6) A
representation may be withdrawn or corrected before the contract is
concluded.
(7) Whether a
particular representation is material or not is in each case a question of
fact.
Cf. 1907, No. 24, s. 20
21.
When contract is deemed to be concluded -
A contract of marine insurance is deemed to be concluded when the proposal of
the assured is accepted by the insurer, whether the
policy is then issued or
not; and for the purpose of showing when the proposal was accepted reference may
be made to the slip or
covering note, or other customary memorandum of the
contract, although it is unstamped.
Cf. 1907, No. 24, s. 21
The Policy
22.
Contract must be embodied in policy - (1)
No action shall be brought on a contract of marine insurance unless it is
embodied in a marine policy in accordance with this
Act.
(2) The policy may be
executed and issued either at the time when the contract is concluded or
afterwards.
Cf. 1907, No. 24, s. 22
23.
What policy must
specify - A marine policy must specify
-
(a) The name of the assured, or of some person who effects the insurance on his behalf;
(b) The subject-matter insured and the risk insured against;
(c) The voyage or period of time, or both, as the case may be, covered by the insurance;
(d) The sum or sums insured;
(e) The name or names of the insurers.
Cf. 1907, No. 24, s. 23
24.
Signature of insurer - (1) A marine
policy must be signed by or on behalf of the insurer; provided that in the case
of a corporation the corporate seal
may be sufficient, but nothing in this
section shall be construed as requiring the subscription of a corporation to be
under seal.
(2) Where a policy is
subscribed by or on behalf of two or more insurers, each subscription, unless
the contrary is expressed, constitutes
a distinct contract with the
assured.
Cf. 1907, No. 24, s. 24
25.
Designation of subject-matter - (1) The
subject-matter insured must be designated in a marine policy with reasonable
certainty.
(2) The nature and
extent of the interest of the assured in the subject-matter insured need not be
specified in the policy.
(3) Where
the policy designates the subject-matter insured in general terms, it shall be
construed to apply to the interest intended
by the assured to be
covered.
(4) In the application of
this section regard shall be had to any usage regulating the designation of the
subject-matter insured.
Cf. 1907, No. 24, s. 25
26.
Failure to execute and stamp policy - (1)
If any person, whether as an insurer or as the agent of an insurer, directly or
indirectly receives or takes credit in account
for any premium or consideration
for any contract of marine insurance, and does not before or within thirty days
after receiving
or taking credit for such premium or consideration duly execute
or procure to be duly executed, a policy of such insurance, he shall
be liable
to a fine of one hundred
pounds.
(2) If any person, whether
as an insurer or as the agent of an insurer, pays any sum of money upon any loss
under a contract of marine
insurance which is not expressed in a duly executed
policy, or if he in any way settles any claim made in respect of such a
contract,
he shall be liable to a fine of one hundred
pounds.
(3) This section does not
apply to contracts of reinsurance of risks in respect whereof policies have been
duly executed.
(4) This section
applies to the agent of an insurer, whether such insurer resides or carries on
business in New Zealand or
elsewhere.
[Amended
3/11/1960 (NZ)]
27.
Voyaged time policies - (1) Where the
contract is to insure the subject-matter at and from, or from one place to
another or others, the policy is called
a "voyage policy"; and where the
contract is to insure the subject-matter for a definite period of time, the
policy is called a "time
policy". A contract for both voyage and time may be
included in the same policy.
(2) A
time policy which is made for any time exceeding twelve months is invalid; but a
time policy may contain an agreement to the
effect that, in the event of the
ship being at sea or the voyage otherwise not completed on the expiration of
twelve months, the
subject-matter of the insurance shall be held covered until
the arrival of the ship at her destination, or for a reasonable time
thereafter
not exceeding thirty
days.
[Amended
3/11/1960 (NZ)]
28.
Valued policy - (1) A policy may be
either valued or unvalued.
(2) A
valued policy is a policy which specifies the agreed value of the subject-matter
insured.
(3) Subject to the
provisions of this Act, and in the absence of fraud, the value fixed by the
policy is, as between the insurer and
assured, conclusive of the insurable value
of the subject intended to be insured, whether the loss is total or
partial.
(4) Unless the policy
otherwise provides, the value fixed by the policy is not conclusive for the
purpose of determining whether there
has been a constructive total
loss.
Cf. 1907, No. 24, s. 28
29.
Unvalued policy - An unvalued policy is a
policy which does not specify the value of the subject-matter insured, but,
subject to the limit of the
sum insured, leaves the insurable value to be
subsequently ascertained in the manner hereinbefore
specified.
30.
Floating policy by
ship or ships - (1) A floating policy is
a policy which describes the insurance in general terms, and leaves the name of
the ship or ships and other
particulars to be defined by subsequent
declaration.
(2) The subsequent
declaration or declarations may be made by endorsement on the policy or in other
customary manner.
(3) Unless the
policy otherwise provides, the declarations must be made in the order of
despatch or shipment. They must, in the case
of goods, comprise all consignments
within the terms of the policy, and the value of the goods or other property
must be honestly
stated, but an omission or erroneous declaration may be
rectified even after loss or arrival, provided the omission or declaration
was
made in good faith.
(4) Unless the
policy otherwise provides, where a declaration of value is not made until after
notice of loss or arrival, the policy
must be treated as an unvalued policy as
regards the subject-matter of that declaration.
Cf. 1907, No. 24, s. 30
31.
Premium to be arranged - (1) Where an
insurance is effected at a premium to be arranged, and no arrangement is made, a
reasonable premium is payable.
(2)
Where an insurance is effected on the terms that an additional premium is to be
arranged in a given event, and that event happens
but no arrangement is made,
then a reasonable additional premium is payable.
Cf. 1907, No. 24, s. 31
32.
Construction of terms in policy - Subject
to the provisions of this Act, and unless the context of the policy otherwise
requires, the terms and expressions mentioned
in the Second Schedule to this Act
have, when contained in a policy, the meaning and operation attributed to them
in the said Schedule.
Double Insurance
33.
Double insurance
- (1) Where two or more policies are
effected by or on behalf of the assured on the same adventure and interest or
any part thereof,
and the sums insured exceed the indemnity allowed by this Act,
the assured is said to be overinsured by double
insurance.
(2) Where the assured
is overinsured by double insurance -
(a) The assured, unless the policy otherwise provides, may claim payment from the insurers in such order as he thinks fit, provided that he is not entitled to receive any sum in excess of the indemnity allowed by this Act;
(b) Where the policy under which the assured claims is a valued policy, the assured must give credit as against the valuation for any sum received by him under any other policy, without regard to the actual value of the subject-matter insured;
(c) Where the policy under which the assured claims is an unvalued policy, he must give credit, as against the full insurable value, for any sum received by him under any other policy;
(d) Where the assured receives any sum in excess of the indemnity allowed by this Act, he is deemed to hold such sum in trust for the insurers, according to their right of contribution among themselves.
Cf. 1907, No. 24, s. 33
34.
Nature of warranty - (1) A warranty, in
the following sections relating to warranties, means a promissory warranty-that
is to say, a warranty by which
the assured undertakes that some particular thing
shall or shall not be done, or that some condition shall be fulfilled, or
whereby
he affirms or negatives the existence of a particular state of
facts.
(2) A warranty may be
express or implied.
(3) A warranty
as above defined is a condition which must be exactly complied with, whether
material to the risk or not. If it is
not so complied with, then, subject to any
express provision in the policy, the insurer is discharged from liability as
from the
date of the breach of warranty, but without prejudice to any liability
incurred by him before that date.
Cf. 1907, No. 24, s. 34
35.
When breach of
warranty excused - (1) Non-compliance
with a warranty is excused when, by reason of a change of circumstances, the
warranty ceases to be applicable
to the circumstances of the contract, or when
compliance with the warranty is rendered unlawful by any subsequent
law.
(2) Where a warranty is
broken, the assured cannot avail himself of the defence that the breach has been
remedied, and the warranty
complied with, before
loss.
(3) A breach of warranty may
be waived by the insurer.
Cf. 1907, No. 24, s. 35
36.
Express warranties - (1) An express
warranty may be in any form of words from which the intention to warrant is to
be inferred.
(2) An express
warranty must be included in or written upon the policy, or must be contained in
some document incorporated by reference
into the
policy.
(3) An express warranty
does not exclude an implied warranty, unless it is inconsistent
therewith.
Cf. 1907, No. 24, s. 36
37.
Warranty of neutrality - (1) Where
insurable property, whether ship or goods, is expressly warranted neutral, there
is an implied condition that the property
shall have a neutral character at the
commencement of the risk, and that, so far as the assured can control the
matter, its neutral
character shall be preserved during the
risk.
(2) Where a ship is
expressly warranted neutral, there is also an implied condition that, so far as
the assured can control the matter,
the ship shall be properly documented-that
is to say, that she shall carry the necessary papers to establish her
neutrality, and
that her papers shall not be falsified or suppressed, and that
simulated papers shall not be used. If any loss occurs through breach
of this
condition, the insurer may avoid the contract.
Cf. 1907, No. 24, s. 37
38.
No implied warranty of nationality -
There is no implied warranty as to the nationality of a ship, or that her
nationality shall not be changed during the risk.
Cf. 1907, No. 24, s. 38
39.
Warranty of good safety - Where the
subject-matter insured is warranted "well" or "in good safety" on a particular
day, it is sufficient if it is safe at
any time during that day.
Cf. 1907, No. 24, s. 39
40.
Warranty of seaworthiness of ship - (1)
In a voyage policy there is an implied warranty that at the commencement of the
voyage the ship shall be seaworthy for the purpose
of the particular adventure
insured.
(2) Where the policy
attaches while the ship is in port, there is also an implied warranty that she
shall, at the commencement of
the risk, be reasonably fit to encounter the
ordinary perils of the port.
(3)
Where the policy relates to a voyage which is performed in different stages,
during which the ship requires different kinds of
or further preparation or
equipment, there is an implied warranty that at the commencement of each stage
the ship is seaworthy in
respect of such preparation or equipment for the
purposes of that stage.
(4) A ship
is deemed to be seaworthy when she is reasonably fit in all respects to
encounter the ordinary perils of the seas of the
adventure
insured.
(5) In a time policy
there is no implied warranty that the ship shall be seaworthy at any stage of
the adventure; but where, with
the privity of the assured, the ship is sent to
sea in an unseaworthy state, the insurer is not liable for any loss attributable
to unseaworthiness.
Cf. 1907, No. 24, s. 40
41.
No implied warranty that goods are seaworthy
- (1) In a policy on goods or other
movables there is no implied warranty that the goods or movables are
seaworthy.
(2) In a voyage policy
on goods or other movables there is an implied warranty that at the commencement
of the voyage the ship is
not only seaworthy as a ship, but also that she is
reasonably fit to carry the goods or other movables to the destination
contemplated
by the policy.
Cf. 1907, No. 24, s. 41
42.
Warranty of legality - There is an
implied warranty that the adventure insured is a lawful one, and that, so far as
the assured can control the matter,
the adventure shall be carried out in a
lawful manner.
Cf. 1907, No. 24, s. 42
The Voyage
43.
Implied condition as to commencement of risk
- (1) Where the subject-matter is insured
by a voyage policy "at and from" or "from" a particular place, it is not
necessary that
the ship should be at that place when the contract is concluded,
but there is an implied condition that the adventure shall be commenced
within a
reasonable time, and that if the adventure is not so commenced the insurer may
avoid the contract.
(2) The
implied condition may be negatived by showing that the delay was caused by
circumstances known to the insurer before the contract
was concluded, or that he
waived the condition.
Cf. 1907, No. 24, s. 43
44.
Alteration of port of departure - Where
the place of departure is specified by the policy, and the ship instead of
sailing from that place sails from any other place,
the risk does not
attach.
Cf. 1907, No. 24, s. 44
45.
Sailing for different destination - Where
the destination in specified in the policy, and the ship instead of sailing for
that destination sails for any other destination,
the risk does not
attach.
Cf. 1907, No. 24, s. 45
46.
Change of voyage - (1) Where, after the
commencement of the risk, the destination of the ship is voluntarily changed
from the destination contemplated
by the policy, there is said to be a change of
voyage.
(2) Unless the policy
otherwise provides, where there is a change of voyage the insurer is discharged
from liability as from the time
of change-that is to say, as from the time when
the determination to change it is manifested; and it is immaterial that the ship
may not in fact have left the course of voyage contemplated by the policy when
the loss occurs.
Cf. 1907, No. 24, s. 46
47.
Deviation - (1) Where a ship without
lawful excuse deviates from the voyage contemplated by the policy, the insurer
is discharged from liability
as from the time of deviation, and it is immaterial
that the ship may have regained her route before any loss
occurs.
(2) There is a deviation
from the voyage contemplated by the policy -
(a) Where the course of the voyage is specifically designated by the policy, and that course is departed from; or
(b) Where the course of the voyage is not specifically designated by the policy, but the usual and customary course is departed from.
(3)
The intention to deviate is immaterial; there must be a deviation in fact to
discharge the insurer from his liability under the
contract.
Cf. 1907, No. 24, s. 47
48.
Several ports of discharge - (1) Where
several ports of discharge are specified by the policy, the ship may proceed to
all or any of them, but in the absence
of any usage or sufficient cause to the
contrary she must proceed to them, or such of them as she goes to, in the order
designated
by the policy. If she does not, there is a
deviation.
(2) Where the policy is
to "ports of discharge" within a given area, which are not named, the ship must,
in the absence of any usage
or sufficient cause to the contrary, proceed to
them, or such of them as she goes to, in their geographical order. If she does
not,
there is a deviation.
Cf. 1907, No. 24, s. 48
49.
Delay in voyage - In the case of a voyage
policy the adventure insured must be prosecuted throughout its course with
reasonable despatch, and if without
lawful excuse it is not so prosecuted, the
insurer is discharged from liability as from the time when the delay became
unreasonable.
Cf. 1907, No. 24, s. 49
50.
Excuses for deviation or delay - (1)
Deviation or delay in prosecuting the voyage contemplated by the policy is
excused -
(a) Where authorised by any special term in the policy; or
(b) Where caused by circumstances beyond the control of the master and his employer; or
(c) Where reasonably necessary in order to comply with an express or implied warranty; or
(d) Where reasonably necessary for the safety of the ship or subject-matter insured; or
(e) For the purpose of saving human life, or aiding a ship in distress where human life may be in danger; or
(f) Where reasonably necessary for the purpose of obtaining medical or surgical aid for any person on board the ship; or
(g) Where caused by the barratrous conduct of the master or crew, if barratry is one of the perils insured against.
(2)
When the cause excusing the deviation or delay ceases to operate, the ship must
resume her course and prosecute her voyage with
reasonable despatch.
Cf. 1907, No. 24, s. 50
Assignment of Policy
51.
When and how policy is assignable - (1) A
marine policy is assignable unless it contains terms expressly prohibiting
assignment. It may be assigned either before or
after
loss.
(2) Where a marine policy
has been assigned so as to pass the beneficial interest in the policy, the
assignee of the policy is entitled
to sue thereon in his own name; and the
defendant is entitled to make any defence arising out of the contract which he
would have
been entitled to make if the action had been brought in the name of
the person by or on behalf of whom the policy was
effected.
(3) A marine policy may
be assigned by endorsement whereon or in other customary manner.
Cf. 1907, No. 24, s. 51
52.
Assured who has no interest cannot assign
- Where the insured has parted with or
lost his interest in the subject-matter insured, and has not, before or at the
time of so doing,
expressly or impliedly agreed to assign the policy, any
subsequent assignment of the policy is
inoperative:
Provided that nothing
in this section affects the assignment of a policy after loss.
Cf. 1907, No. 24, s. 52
The Premium
53.
Policy effected through broker - (1)
Unless otherwise agreed, where a marine policy is effected on behalf of the
assured by a broker, the broker is directly responsible
to the insurer for the
premium, and the insurer is directly responsible to the assured for the amount
which may be payable in respect
of losses or in respect of returnable
premium.
(2) Unless otherwise
agreed, the broker has, as against the assured, a lien upon the policy for the
amount of the premium and his
charges in respect of effecting the policy; and,
where he has dealt with the person who employs him as a principal, he has also a
lien on the policy in respect of any balance on any insurance account which may
be due to him from such person, unless when the debt
was incurred he had reason
to believe that such person was only an agent.
Cf. 1907, No. 24, s. 53
54.
Effect of receipt on policy - Where a
marine policy effected on behalf of the assured by a broker acknowledges the
receipt of the premium, such acknowledgment
is, in the absence of fraud,
conclusive as between the insurer and the assured, but not as between the
insurer and the broker.
Cf. 1907, No. 24, s. 54
Loss and Abandonment
55.
Included and excluded losses - (1)
Subject to the provisions of this Act, and unless the policy otherwise provides,
the insurer is liable for any loss proximately
caused by a peril insured
against; but, subject as aforesaid, he is not liable for any loss not
proximately caused by a peril insured
against.
(2) In particular
-
(a) The insurer is not liable for any loss attributable to the wilful misconduct of the assured; but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence of the master or crew;
(b) Unless the policy otherwise provides, the insurer on ship or goods is not liable for any loss proximately caused by delay, although the delay is caused by a peril insured against;
(c) Unless the policy otherwise provides, the insurer is not liable for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject-matter insured, or for any loss proximately caused by rats or vermin, or for any injury to machinery not proximately caused by maritime perils.
Cf. 1907, No. 24, s. 55
56.
Partial and total loss - (1) A loss may
be either total or partial. Any loss other than a total loss, as hereinafter
defined, is a partial loss.
(2) A
total loss may be either an actual total loss or a constructive total
loss.
(3) Unless a different
intention appears from the terms of policy, an insurance against total loss
includes a constructive as well
as an actual total
loss.
(4) Where the assured brings
an action for a total loss, and evidence proves only a partial loss, he may,
unless the policy otherwise
provides, recover for a partial
loss.
(5) Where goods reach their
destination in specie, but by reason of obliteration of marks or otherwise they
are incapable identification,
the loss (if any) is partial and not
total.
Cf. 1907, No. 24, s. 56
57.
Actual total loss - (1) Where the
subject-matter insured is destroyed, or so damaged as to cease to be a thing of
the kind insured, or where the assured
is irretrievably deprived thereof, there
is an actual total loss.
(2) In
the case of an actual total loss no notice of abandonment need be
given.
Cf. 1907, No. 24, s. 57
58.
Missing ship - Where the ship concerned
in the adventure is missing, and after the lapse of a reasonable time no news of
her has been received,
an actual total loss may be presumed.
Cf. 1907, No. 24, s. 58
59.
Effect of transhipment, etc. - Where, by
a peril insured against, the voyage is interrupted at an intermediate port or
place under such circumstances as, apart
from any special stipulation in the
contract of affreightment, to justify the master in landing and reshipping the
goods or other
movables, or in transhipping them, and sending them on to their
destination, the liability of the insurer continues, notwithstanding
the landing
or transhipment.
Cf. 1907, No. 24, s. 59
60.
Constructive total loss defined - (1)
Subject to any express provision in the policy, there is a constructive total
loss. Where the subject-matter insured is reasonably
abandoned on account of its
actual total loss appearing to be unavoidable, or because it could not be
preserved from actual total
loss without an expenditure which would exceed its
value when the expenditure had been
incurred.
(2) In particular there
is a constructive total loss -
(a) Where the assured is deprived of the possession of his ship or goods by a peril insured against, and (i) it is unlikely that he can recover the ship or goods, as the case may be, or (ii) the cost of recovering the ship or goods, as the case may be, would exceed their value when recovered; or
(b) In the case of damage to a ship, where she is so damaged by a peril insured against that the cost of repairing the damage would exceed the value of the ship when repaired; or
(c) In the case of damage to goods, where the cost of repairing the damage and forwarding the goods to their destination would exceed their value on arrival.
(3)
In estimating the cost of repairs, no deduction is to be made in respect of
general average contributions to those repairs payable
by other interests, but
account is to be taken of the expense of future salvage operations and of any
future general average contributions
to which the ship would be liable if
repaired.
Cf. 1907, No. 24, s. 60
61.
Effect of constructive total loss - Where
there is a constructive total loss, the assured may either treat the loss as a
partial loss or abandon the subject-matter
insured to the insurer and treat the
loss as if it were an actual total loss.
Cf. 1907, No. 24, s. 61
62.
Notice of abandonment - (1) Subject to
the provisions of this section, where the assured elects to abandon the
subject-matter insured to the insurer he
must give notice of abandonment. If he
fails to do so, the loss can be treated only as a partial
loss.
(2) Notice of abandonment
may be given in writing, or by word of mouth, or partly in writing and partly by
word of mouth, and may
be given in any terms which indicate the intention of the
assured to abandon his insured interest in the subject-matter insured
unconditionally
to the
insurer.
(3) Notice of abandonment
must be given with reasonable diligence after the receipt of reliable
information of the loss, but where
the information is of a doubtful character
the assured is entitled to a reasonable time to make
inquiry.
(4) Where notice of
abandonment is properly given, the rights of the assured are not prejudiced by
the fact that the insurer refuses
to accept the
abandonment.
(5) The acceptance of
an abandonment may be either express or implied from the conduct of the insurer.
The mere silence of the insurer
after notice is not an
acceptance.
(6) Where notice of
abandonment is accepted, the abandonment is irrevocable. The acceptance of the
notice conclusively admits liability
for the loss and the sufficiency of the
notice.
(7) Notice of abandonment
is unnecessary where, at the time when the assured receives information of the
loss, there would be no possibility
of benefit to the insurer if notice were
given to him.
(8) Notice of
abandonment may be waived by the
insurer.
(9) Where an insurer has
reinsured his risk, no notice of abandonment need be given by him.
Cf. 1907, No. 24, s. 62
63.
Effect of abandonment - (1) Where there
is a valid abandonment, the insurer is entitled to take over the interest of the
assured in whatever may remain
of the subject-matter insured, and all
proprietary rights incidental
thereto.
(2) Upon the abandonment
of a ship the insurer thereof is entitled to any freight which is in course of
being earned, and which is
earned by her subsequent to the casualty causing the
loss, less the expenses of earning it incurred after the casualty; and where
the
ship is carrying the owner's goods, the insurer is entitled to a reasonable
remuneration for the carriage of them subsequent
to the casualty causing the
loss.
Cf. 1907, No. 24, s. 63
Partial Losses (Including Salvage and General Average and Particular Charges)
64.
Particular average loss - (1) A
particular average loss is a partial loss of the subject-matter insured, which
is caused by a peril insured against, and which
is not a general average
loss.
(2) Expenses incurred by or
on behalf of the assured for the safety or preservation of the subject-matter
insured, other than general
average and salvage charges, are called particular
charges. Particular charges are not included in particular average.
Cf. 1907. No. 24. s. 64
65.
Salvage charges - (1) Subject to any
express provision in the policy, salvage charges incurred in preventing a loss
by perils insured against may
be recovered as a loss by those
perils.
(2) "Salvage charges"
means the charges recoverable under maritime law by a salvor independently of
contract, and does not include
the expenses of services in the nature of salvage
rendered by the assured or his agents, or any person employed for hire by them,
for the purpose of averting a peril insured against. Such expenses, where
properly incurred, may be recovered as particular charges
or as a general
average loss, according to the circumstances under which they were
incurred.
Cf. 1907, No. 24, s. 65
66.
General average loss - (1) A general
average loss is loss caused by or directly consequential on a general average
act. It includes a general average expenditure
as well as a general average
sacrifice.
(2) There is a general
average act where any extraordinary sacrifice or expenditure is voluntarily and
reasonably made or incurred
in time of peril for the purpose of preserving the
property imperilled in the common
adventure.
(3) Where there is a
general average loss, the party on whom it falls is entitled, subject to the
conditions imposed by maritime law,
to a rateable contribution from the other
parties interested, and such contribution is called a general average
contribution.
(4) Subject to any
express provision in the policy, where the assured has incurred a general
average expenditure he may recover from
the insurer in respect of the proportion
of the loss which falls upon him; and, in the case of a general average
sacrifice, he may
recover from the insurer in respect of the whole loss without
having enforced his right of contribution from the other parties liable
to
contribute.
(5) Subject to any
express provision in the policy, where the assured has paid or is liable to pay
a general average contribution
in respect of the subject insured he may recover
therefor from the insurer.
(6) In
the absence of express stipulation, the insurer is not liable for any general
average loss or contribution where the loss was
not incurred for the purpose of
avoiding or in connection with the avoidance of a peril insured
against.
(7) Where ship, freight,
and cargo, or any two of those interests, are owned by the same assured, the
liability of the insurer in
respect of general average losses or contributions
is to be determined as if those subjects were owned by different
persons.
Cf. 1907, No. 24, s. 66
Measure of Indemnity
67.
Extent of liability of insurer for loss -
(1) The sum which the assured can recover in respect of a loss on a policy by
which he is insured, in the case of an unvalued policy
to the full extent of the
insurable value, or in the case of a valued policy to the full extent of the
value fixed by the policy,
is called the measure of
indemnity.
(2) Where there is a
loss recoverable under the policy, the insurer, or each insurer if there are
more than one, is liable for such
proportion of the measure of indemnity as the
amount of his subscription bears to the value fixed by the policy in the case of
a
valued policy, or to the insurable value in the case of an unvalued
policy.
Cf. 1907, No. 24, s. 67
68.
Total loss - Subject to the provisions of
this Act and to any express provision in the policy, where there is a total loss
of the subject-matter
insured, -
(a) If the policy is a valued policy, the measure of indemnity is the sum fixed by the policy;
(b) If the policy is an unvalued policy, the measure of indemnity is the insurable value of the subject-matter insured.
Cf. 1907, No. 24, s. 68
69.
Partial loss of ship - Where a ship is
damaged, but is not totally lost, the measure of indemnity, subject to any
express provision in the policy, is as
follows:
(a) Where the ship has been repaired, the assured is entitled to the reasonable cost of the repairs, less the customary deductions, but not exceeding the sum insured in respect of any one casualty;
(b) Where the ship has been only partially repaired, the assured is entitled to the reasonable cost of such repairs, computed as above, and also to be indemnified for the reasonable depreciation (if any) arising from the unrepaired damage, provided that the aggregate amount shall not exceed the cost of repairing the whole damage, computed as above;
(c) Where the ship has not been repaired, and has not been sold in her damaged state during the risk, the assured is entitled to be indemnified for the reasonable depreciation arising from the unrepaired damage, but not exceeding the reasonable cost of repairing such damage, computed as above.
Cf. 1907, No. 24, s. 69
70.
Partial loss of freight - Subject to any
express provision in the policy, where there is a partial loss of freight the
measure of indemnity is such proportion
of the sum fixed by the policy in the
case of a valued policy, or of the insurable value in the case of an unvalued
policy, as the
proportion of freight lost by the assured bears to the whole
freight at the risk of the assured under the policy.
Cf. 1907, No. 24, s. 70
71.
Partial loss of goods, merchandise, etc.
- Where there is a partial loss of goods,
merchandise, or other movables, the measure of indemnity, subject to any express
provision
in the policy, is as follows:
(a) Where part of the goods, merchandise, or other movables insured by a valued policy is totally lost, the measure of indemnity is such proportion of the sum fixed by the policy as the insurable value of the part lost bears to the insurable value of the whole, ascertained as in the case of an unvalued policy;
(b) Where part of the goods, merchandise, or other movables insured by an unvalued policy is totally lost, the measure of indemnity is the insurable value of the part lost, ascertained as in case of total loss;
(c) Where the whole or any part of the goods or merchandise insured has been delivered damaged at its destination, the measure of indemnity is such proportion of the sum fixed by the policy in the case of a valued policy, or of the insurable value in the case of an unvalued policy, as the difference between the gross sound and damaged values at the place of arrival bears to the gross sound value;
(d) "Gross value" means the wholesale price or, if there is no such price, the estimated value, with in either case freight, landing charges, and duty paid beforehand; provided that, in the case of goods or merchandise customarily sold in bond, the bonded price is deemed to be the gross value.
Cf. 1907, No. 24, s. 71
72.
Apportionment of valuation - (1) Where
different species of property are insured under a single valuation, the
valuation must be apportioned over the different
species in proportion to their
respective insurable values, as in the case of an unvalued
policy.
(2) The insured value of
any part of a species is such proportion of the total insured value of the same
as the insurable value of
the part bears to the insurable value of the whole,
ascertained in both cases as provided by this
Act.
(3) Where a valuation has to
be apportioned, and particulars of the prime cost of each separate species,
quality, or description of
goods cannot be ascertained, the division of the
valuation may be made over the net arrived sound values of the different
species,
qualities, or descriptions of goods.
Cf. 1907, No. 24, s. 72
73.
General average contributions and salvage charges
- (1) Subject to any express provision in
the policy, where the assured has paid or is liable for any general average
contribution
the measure of indemnity is the full amount of such contribution if
the subject-matter liable to contribution is insured for its
full contributory
value, but if such subject-matter is not insured for its full contributory
value, or if only part of it is insured,
the indemnity payable by the insurer
must be reduced in proportion to the under-insurance, and where there has been a
particular
average loss which constitutes a deduction from the contributory
value, and for which the insurer is liable, that amount must be
deducted from
the insured value in order to ascertain what the insurer is liable to
contribute.
(2) Where the insurer
is liable for salvage charges, the extent of his liability must be determined on
the like principle.
Cf. 1907, No. 24, s. 73
74.
Liabilities to third parties - Where the
assured has effected an insurance in express terms against any liability to a
third party, the measure of indemnity, subject
to any express provision in the
policy, is the amount paid or payable by him to such third party in respect of
such liability.
Cf. 1907, No. 24, s. 74
75.
General provisions as to measure of indemnity
- (1) Where there has been a loss in
respect of any subject matter not expressly provided for in the foregoing
provisions of this
Act, the measure of indemnity shall be ascertained, as nearly
as may be, in accordance with those provisions, in so far as applicable
to the
particular case.
(2) Nothing in
the provisions of this Act relating to the measure of indemnity shall affect the
rules relating to double insurance,
or prohibit the insurer from disproving
interest wholly or in part, or from showing that at the time of the loss the
whole or any
part of the subject-matter insured was not at risk under the
policy.
Cf. 1907, No. 24, s. 75
76.
Particular average warranties - (1) Where
the subject-matter insured is warranted free from particular average, the
assured cannot recover for a loss of part, other
than a loss incurred by a
general average sacrifice, unless the contract contained in the policy is
apportionable; but if the contract
is apportionable, the assured may recover for
a total loss of any apportionable
part.
(2) Where the subject-matter
insured is warranted free from particular average, either wholly or under a
certain percentage, the insurer
is nevertheless liable for salvage charges, and
for particular charges and other expenses properly incurred pursuant to the
provisions
of the suing and labouring clause in order to avert a loss insured
against.
(3) Unless the policy
otherwise provides, where the subject-matter insured is warranted free from
particular average under a specified
percentage, a general average loss cannot
be added to a particular average loss to make up the specified
percentage.
(4) For the purpose of
ascertaining whether the specified percentage has been reached, regard shall be
had only to the actual loss
suffered by the subject-matter insured. Particular
charges and the expenses of and incidental to ascertaining and proving the loss
must be excluded.
Cf. 1907, No. 24, s. 76
77.
Successive losses - (1) Unless the policy
otherwise provides, and subject to the provisions of this Act, the insurer is
liable for successive losses,
even though the total amount of such losses may
exceed the sum insured.
(2) Where
under the same policy a partial loss which has not been repaired or otherwise
made good is followed by a total loss, the
assured can only recover in respect
of the total loss.
(3) Nothing in
this section shall affect the liability of the insurer under the suing and
labouring clause.
Cf. 1907, No. 24, s. 77
78.
Suing and labouring clause - (1) Where
the policy contains a suing and labouring clause, the engagement thereby entered
into is deemed to be supplementary to
the contract of insurance, and the assured
may recover from the insurer any expenses properly incurred pursuant to the
clause, notwithstanding
that the insurer may have paid for a total loss, or that
the subject-matter may have been warranted free from particular average,
either
wholly or under a certain
percentage.
(2) General average
losses and contributions and salvage charges, as defined by this Act, are not
recoverable under the suing and
labouring
clause.
(3) Expenses incurred for
the purpose of averting or diminishing any loss not covered by the policy are
not recoverable under the
suing and labouring
clause.
(4) It is the duty of the
assured and his agents in all cases to take such measures as may be reasonable
for the purpose of averting
or minimising a loss.
Cf. 1907, No. 24, s. 78
Rights of Insurer on Payment
79.
Right of subrogation - (1) Where the
insurer pays for a total loss either of the whole or, in the case of goods, of
any apportionable part of the subject-matter
insured, he thereupon becomes
entitled to take over the interest of the assured in whatever may remain of the
subject-matter so paid
for, and he is thereby subrogated to all the rights and
remedies of the assured in and in respect of that subject-matter as from
the
time of the casualty causing the
loss.
(2) Subject to the foregoing
provisions, where the insurer pays for a partial loss he acquires no title to
the subject-matter insured,
or such part of it as may remain, but he is
thereupon subrogated to all rights and remedies of the assured in and in respect
of the
subject-matter insured as from the time of the casualty causing the loss,
in so far as the assured has been indemnified, according
to this Act, by such
payment for the loss.
Cf. 1907, No. 24, s. 79
80.
Right of contribution - (1) Where the
assured is over-insured by double insurance, each insurer is bound, as between
himself and the other insurers, to
contribute rateably to the loss in proportion
to the amount for which he is liable under his
contract.
(2) If any insurer pays
more than his proportion of the loss, he is entitled to maintain an action for
contribution against the other
insurers, and is entitled to the like remedies as
a surety who has paid more than his proportion of the debt.
Cf. 1907, No. 24, s. 80
81.
Effect of under-insurance - Where the
assured is insured for an amount less than the insurable value, or, in the case
of a valued policy, for an amount less
than the policy valuation, he is deemed
to be his own insurer in respect of the uninsured balance.
Cf. 1907, No. 24, s. 81
Return of Premium
82.
Enforcement of return - Where the premium
or a proportionate part thereof is by this Act declared to be returnable,
-
(a) If already paid, it may be recovered by the assured from the insurer; and
(b) If unpaid, it may be retained by the assured or his agent.
Cf. 1907, No. 24, s. 82
83.
Return by agreement - Where the policy
contains a stipulation for the return of the premium or a proportionate part
thereof on the happening of a certain
event, and that event happens, the premium
or, as the case may be, the proportionate part thereof is thereupon returnable
to the
assured.
Cf. 1907, No. 24, s. 83
84.
Return for failure of consideration - (1)
Where the consideration for the payment of the premium totally fails, and there
has been no fraud or illegality on the part
of the assured or his agents, the
premium is thereupon returnable to the
assured.
(2) Where the
consideration for the payment of the premium is apportionable, and there is a
total failure of any apportionable part
of the consideration, a proportionate
part of the premium is under the like conditions thereupon returnable to the
assured.
(3) In particular,
-
(a) Where the policy is void, or is avoided by the insurer as from the commencement of the risk, the premium is returnable, provided that there has been no fraud or illegality on the part of the assured; but if the risk is not apportionable, and has once attached, the premium is not returnable;
(b) Where the subject-matter insured or part thereof has never been imperilled, the premium or, as the case may be, a proportionate part thereof is returnable:
Provided that where the subject-matter has been insured "lost or not lost," and has arrived in safety at the time when the contract is concluded, the premium is not returnable unless at such time the insurer knew of the safe arrival;
(c) Where the assured has no insurable interest throughout the currency of the risk, the premium is returnable; provided that this rule does not apply to a policy effected by way of gaming or wagering;
(d) Where the assured has a defeasible interest which is terminated during the currency of the risk, the premium is not returnable;
(e) Where the assured has overinsured under an unvalued policy, a proportionate part of the premium is returnable;
(f) Subject to the foregoing provisions, where the assured has overinsured by double insurance, a proportionate part of the several premiums is returnable:
Provided that if the policies are effected at different times, and any earlier policy has at any time borne the entire risk, or if a claim has been paid on the policy in respect of the full sum insured thereby, no premium is returnable in respect of that policy; and when the double insurance is effected knowingly by the assured, no premium is returnable.
Cf. 1907, No. 24, s. 84
Mutual Insurance
85.
Modification of Act in case of mutual insurance
- (1) Where two or more persons mutually
agree to insure each other against marine losses there is said to be a mutual
insurance.
(2) The provisions of
this Act relating to the premium do not apply to mutual insurance, but a
guarantee, or such other arrangement
as may be agreed upon, may be substituted
for the premium.
(3) The
provisions of this Act, in so far as they may be modified by the agreement of
the parties, may in the case of mutual insurance
be modified by the terms of the
policies issued by the association, or by the rules and regulations of the
association.
(4) Subject to the
exceptions mentioned in this section, the provisions of this Act apply to a
mutual insurance.
Cf. 1907, No. 24, s. 85
Supplemental
86.
Ratification by assured - Where a
contract of marine insurance is in good faith effected by one person on behalf
of another, the person on whose behalf it
is effected may ratify the contract
even after he is aware of the loss.
Cf. 1907, No. 24, s. 86
87.
Implied obligations varied by agreement or usage
- (1)Where any right, duty, or liability
would arise under a contract of marine insurance by implication of law, it may
be negatived
or varied by express agreement, or by usage, if the usage be such
as to bind both parties to the
contract.
(2) The provisions of
this section extend to any right, duty, or liability declared by this Act which
may be lawfully modified by
agreement.
Cf. 1907; No. 24, s. 87
88.
Reasonable time, etc., a question of fact
- Where by this Act any reference is made
to reasonable time, reasonable premium, or reasonable diligence, the question
what is reasonable
is a question of fact.
Cf. 1907, No. 24, s. 88
89.
Application of rules of common law - The
rules of the Common law including the law merchant, save in so far as they are
inconsistent with the express provisions of this
Act, shall continue to apply to
contracts of marine insurance.
Cf. 1907, No. 24, s. 89
90.
[Repealed 3/11/1960 (NZ)]
_____
SCHEDULES
FIRST SCHEDULE
Section 1(2)
ENACTMENTS
CONSOLIDATED
1907, No. 24 - The Marine
Insurance Act 1907
____
SECOND SCHEDULE
Section 32
RULES FOR THE CONSTRUCTION OF POLICIES
The following are the
rules referred to by this Act for the construction of a policy where the context
does not otherwise require:
1.
Where the subject-matter is insured "lost or not lost", and the loss has
occurred before the contract is concluded, the risk attaches
unless at such time
the assured was aware of the loss and the insurer was
not.
2. Where the subject-matter
is insured "from" a particular place, the risk does not attach until the ship
starts on the voyage insured.
3. (a) Where a ship is insured "at and from" a particular place, and she is at that place in good safety when the contract is concluded, the risk attaches immediately.
(b) If she is not at that place when the contract is concluded the risk attaches as soon as she arrives there in good safety; and, unless the policy otherwise provides, it is immaterial that she is covered by another policy for a specified time after arrival.
(c) Where chartered freight is insured "at and from" a particular place, and the ship is at that place in good safety when the contract is concluded, the risk attaches immediately. If she is not there when the contract is concluded, the risk attaches as soon as she arrives there in good safety.
(d) Where freight other than chartered freight is payable without special conditions, and is insured "at and from" a particular place, the risk attaches pro rata as the goods or merchandise are shipped; provided that if there is cargo in readiness which belongs to the shipowner, or which some other person has contracted with him to ship, the risk attaches as soon as the ship is ready to receive such cargo.
4.
Where goods or other movables are insured "from the loading thereof", the risk
does not attach until such goods or movables are
actually on board, and the
insurer is not liable for them while in transit from the shore to the
ship.
5. Where the risk on goods
or other movables continues until they are "safely landed", they must be landed
in the customary manner
and within a reasonable time after arrival at the port
of discharge, and if they are not so landed the risk
ceases.
6. In the absence of any
further licence or usage, the liberty to touch and stay "at any port or place
whatsoever" does not authorise
the ship to depart from the course of her voyage
from the port of departure to the port of
destination.
7. The term "perils
of the seas" refers only to fortuitous accidents or casualties of the seas. It
does not include the ordinary action
of the winds and
waves.
8. The term "pirates"
includes passengers who mutiny and rioters who attack the ship from the
shore.
9. The term "thieves" does
not cover clandestine theft or a theft committed by any one of the ship's
company, whether crew or
passengers.
10. The term "arrests,
etc., of kings, princes, and people" refers to political or executive acts, and
does not include a loss caused
by riot or by ordinary judicial
process.
11. The term "barratry"
includes every wrongful act wilfully committed by the master or crew to the
prejudice of the owner or, as
the case may be, the
charterer.
12. The term "all other
perils" includes only perils similar in kind to the perils specifically
mentioned in the policy.
13. The
term "average unless general" means a partial loss of the subject-matter insured
other than a general average loss, and does
not include "particular
charges".
14. When a policy
contains the words "warranted free from particular average unless the ship is
stranded, sunk, or burnt", or any
similar expression, and any such accident has
happened to the ship, the insurer is liable for the excepted losses, although
the loss
is not attributable to such accident, provided that when the accident
occurs the risk has attached and (if the policy is on goods)
the damaged goods
are on board.
15. The term "ship"
includes the hull, materials and outfit, stores and provisions for the officers
and crew, and, in the case of
vessels engaged in a special trade, the ordinary
fittings requisite for the trade; and also, in the case of a steamship, the
machinery,
boilers, and coals and engine stores, if owned by the
assured.
16. The term "freight"
includes the profit derivable by a shipowner from the employment of his ship to
carry his own goods or movables,
as well as freight payable by a third party,
but does not include passage
money.
17. The term "goods" means
goods in the nature of merchandise, and does not include personal effects or
provisions and stores for
use on
board.
18. In the absence of any
usage to the contrary, deck cargo and living animals must be insured
specifically, and not under the general
denomination of goods.
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