Marine Insurance Act


Published: 1973-08-20

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MARINE INSURANCE 1

THE MARINE INSURANCE ACT

ARRANGEMENT OF SECTIONS

Preliminary

1. Short title.
2. Interpretation.
3. Application.
4. Saving of rules of common law.

Marine Insurance

5. Marine insurance defined.
6. Mixed sea and land risks.
7. Marine adventure and maritime perils defined.

Insurable Interest

8. Avoidance of wagering or gaming contracts.
9. Insurable interest defined.

10. When interest must attach.
11. Defeasible or contingent interest.
12. Partial interest.
13. Reinsurance.
14. Bottomry.
15. Master’s and seamen’s wages.
16. Advance freight.
17. Charges of insurance.
18. Quantum of interest.
19. Assignment of interest.
20. Prohibition of gambling on loss by maritime perils.

Insurable value

21. Measure of insurable value.

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2 MARINE INSURANCE

Disclosures and Representations

22. Insurance is uberrimae fidei.
23. Disclosure by assured.
24. Disclosure by agent effecting insurance.
25. Representations pending negotiation of contract.
26. When contract is deemed to be concluded.

The Policy

27. Contract must be embodied in policy.
28. What policy must specify.
29. Signature of insurer.
30. Voyage and time.
31. Designation of subject matter.
32. Valued policy.
33. Unvalued policy.
34. Floating policy by ship or ships.
35. Construction of terms in policy.
36. Premium to be arranged.

Double Insurance

37. Double insurance.

Warranties. etc.

38. Nature of warranty.
39. When breach of warranty excused.
40. Fxpress warranties.
41. Warranty of neutrality.
42. No implied warranty of nationality.
43. Warranty of good safety.
44. Warranty of seaworthiness of ship.
45. No implied warranty that goods are seaworthy.
46. Warranty of legality.

The Voyage

47. Implied condition as to commencement of risk.
48. Alteration of port of departure.

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MARINE INSURANCE . 3

49. Sailing for different destination.
50. Change of voyage.
5 1. Deviation.
52. Several ports of discharge.
53. Delay in voyage.
54. Excuses for deviation or delay.

Assignment of policy

55. When and how policy is assignable.
56. Assured who has no interest cannot assign.

The Premium

57. When premium payable.
58. Policy effected through broker.
59. Effect of receipt on policy.

60. Included and excluded losses.
61. Partial and total loss.
62. Actual total loss.
63. Missing ship.
64. Effect of trans-shipment, etc.
65. Constructive total loss defined.
66. Effect of constructive total loss.
67. Notice of abandonment.
68. Effect of abandonment.

Loss and Abandonment

Partial Losses (Including Salvage and General Average and
Particular Charges)

69. Particular average loss.
70. Salvage charges.
71. General average loss.

Measure of Indemnity

72. Extent of liability of insurer for loss.
73. Total loss.
74. Partial loss of ship.
75. Partial loss of freight.

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4 MARINE lNSURANCE

76. Partial loss of goods, merchandise, etc.
77. Apportionment of valuation.
78. General average contributions and salvage charges.
79. Liabilities to third parties.
80. General provisions as to measure of indemnity.
81. Particular average warranties.
82. Successive losses.
83. Suing and labouring clause.

Rights of Insurer on Payment

84. Right of subrogation.
85. Right of contribution.
86. Effect of under-insurance.

Return of Premium

87. Enforcement of return.
88. Return by agreement.
89. Return for failure of consideration.

Mutual Insurance

90. Modification of Act in case of mutual insurance.

Supplemental
91. Ratification by assured.
92. Implied obligations varied by agreement or usage.
93. Reasonable time, etc., a question of fact.
94. Slip as evidence.
95. Repeal.

SCHEDULE

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MARINE INSURANCE 5

Act
1 of 19734

THE MARINE INSURANCE ACT

[20th August, I973.1

1. This Act may be cited as the Marine Insurance Act. shorttitle.

2. In this Act, unless the context otherwise requires- Interpreta-
tion.

“action” includes counter-claim and set-off;
“freight” includes the profit derivable by a shipowner

from the employment of his ship to carry his own
goods or moveables, as well as freight payable by
a third party, but does not include passage money;

“moveables” means any moveable tangible property,
other than the ship, and includes money, valuable
securities, and other documents;

“policy” means a marine policy.

3. This Act shall apply to contracts of marine insurance : Appfication.
Provided that it shall not apply to contracts of marine

insurance made before the 20th August, 1973, or to marine
insurance undertaken by the Government other than
insurance that extends beyond the limits of the Island.

4. The rules of the common law, including the law Savingof
merchant, save in so far as they are inconsistent with the common
express provisions of this Act, shall apply to contracts of law-
marine insurance.

do of

Marine Insurance

5. A contract of marine insurance is a contract whereby Marine
the insurer undertakes to indemnify the assured, in manner defined.
and to the extent thereby agreed, against marine losses,
that is to say, the losses incident to marine adventure.

insurance

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6 MARINE INSURANCE

Mixed sea
and land
risks.

Marine
adventure
and mari-
time perils
defined.

6 4 1 ) 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.

(2) Where a ship in course of building, or the launch
of a ship, or any adventure analagous 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 by this section provided, 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 by this Act defined.

7.41) 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 moveables are exposed to

maritime perils. Such property is in this Act refer-
red to as “insurable property”;

(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 other perils, either of
the like kind or which may be designated by the policy.

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MARINE INSURANCE 7

Insurable Interest
8.-(1) Every contract of marine insurance by way of Avoidance

of wagering
or gaming
contracts.

wagering or gaming is void.

a wagering or gaming contract-
(2) A contract of marine insurance is deemed to be

(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.

9.-(1) Subject to the provisions of this Act, every person Insurable
has an insurable interest who is interested in a marine interest defined.
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.

10.-(1) The assured must be interested in the subject- when
matter insured at the time of the loss though he need not interest mustat ach.
be interested at the time 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

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8 MARINE INSURANCE

Defeasi ble
or contin-
gent inte-
rest.

Partial
interest.

Reinsur-
ance.

Bottomry.

Master's
and sea-
men's
wages.

Advance
freight.

Charges of
insurance.

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.

ll.-(l) 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.

12. A partial interest of any nature is insurable.

13.-(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 reinsur-
ance.

14. The lender of money on bottomry or respondentia
has an insurable interest in respect of the loan.

15. The master or any member of the crew of a ship
has an insurable interest in respect of his wages.

16. 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.

17. The assured has an insurable interest in the charges
of any insurance which he may effect.
- -

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MARINE INSURANCE 9

lS.-(l) Where the subject-matter insured is mortgaged, Quantum of interest.
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.

19. Where the assured assigns or otherwise parts with Assignment
of interest. his interest in the subject-matter insured, he does not thereby

transfer to the assignee his rights under the contract of
insurance, unless there be an express or implied agreement
with the assignee to that effect.

But the provisions of this section do not affect a trans-
mission of interest by operation of law.

20.41) If- Prohibition
of gambling

maritime
(a) any person effects a contract of marine insurance onlossby

without having any bona fide interest, direct or pelils.
indirect, either in the safe arrival of the ship in
relation to which the contract is made or in the
safety or preservation of the subject-matter insured,
or a bona fide expectation of acquiring such an
interest; or

(b) any person in the employment of the owner of a
ship, not being a part owner of the ship, effects a
contract of marine insurance in relation to the
ship, and the contract is made “interest or no
interest”, or “without further proof of interest

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10 MARINE INSURANCE

than the policy itself”, or “without benefit of
salvage to the insurer” or subject to any other
like term,

the contract shall be deemed to be a contract by way of
gambling on loss by maritime perils, and the person effecting
it shall be guilty of an offence, and shall be liable, on
summary conviction before a Resident Magistrate, to im-
prisonment, with or without hard labour, for a term not
exceeding six months or to a fine not exceeding four
hundred dollars, and in either case, to forfeit to the Crown
any money he may receive under the contract.

(2) Any broker or other person through whom, and
any insurer with whom, any such contract is effected shall
be guilty of an offence, and shall be liable, on summary
conviction, to the like penalties if he acted knowing that
the contract was by way of gambling on loss by maritime
perils within the meaning of this Act.

(3) Proceedings under this section shall not be insti-
tuted without the consent of the Director of Public Prosecu-
tions.

(4) Proceedings shall not be instituted under this
section against a person (other than a person in the employ-
ment of the owner of the ship in relation to which the
contract was made) alleged to have effected a contract by
way of gambling on loss by maritime perils until an
opportunity has been afforded him of showing that the
contract was not such a contract as aforesaid, and any
information given by that person for that purpose shall
not be admissible in evidence against him in any prosecution
under this section.

( 5 ) If proceedings under this section are taken
against any person (other than a person in the employment
of the owner of the ship in relation to which the contract
was made) for effecting such a contract, and the contract

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MARINE INSURANCE 11

was 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,
the contract shall be deemed to be a contract by way of
gambling on loss by maritime perils unless the contrary is
proved.

(6) For the purpose of giving jurisdiction under this
section, every offence shall be deemed to have been
committed either in the place in which the same actually
was committed or in any place in which the offender may
be.

(7) For the purposes of this section the expression
“owner” includes charterer.

Insurable Value
21. Subject to any express provision or valuation in the Messureof

insurable policy, the insurable value of the subject-matter insured value.
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 sea-
men’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 :

Provided that the insurable value, 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;

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12 MARINE INSURANCE

(c) in insurance on goods or merchandise, the insur-
able 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;

(4 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.

Disclosures and Representations

22. A contract of marine insurance is a contract based
upon the utmost good faith, and, if the utmost good faith
be not observed by either party, the contract may be
avoided by the other party.

23.41) Subject to the provisions of this section, the
assured must disclose to the insurer, before the contract is
concluded, every material circumstance which is 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 enquiry the following circum-
stances need not be disclosed, namely-

Insuranceis
uberrimae
fidei.

Disclosure
by assured.

(a) any circumstance which diminishes the risk;
(b) any circumstance which js known or presumed to

be known to the insurer. The insurer is presumed
to know matters of common notoriety or know-
ledge, 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;

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MARINE INSURANCE 13

(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, be material or not is, in each case, a question
of fact.

(5 ) The term “circumstance” includes any communi-
cation made to, or information received by, the assured.

24. Subject to the provisions of section 23 as to the Disclosure
by agent circumstances which need not be disclosed, where an $fiectiog

insurance is effected for the assured by an agent, the agent
must disclose to the insurer-

(a) every material circumstance which is 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, or to have
been communicated to, him; and

(b) every material circumstance which the assured is
bound to disclose, unless it came to his knowledge
too late to communicate it to the agent.

25.-( 1) Every material representation made by the Repment-
assured or his agent to the insurer during the negotiations pending
for the contract, and before the contract is concluded, must :?;$;.
be true. If it be 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 be 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.

ationb

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14 MARINE INSURANCE

When
contract is
deemed
to be
concluded.

Contract
must be
em bodied
in policy.

What policy
must
specify.

Signature
of insurer.

(5 ) A representation as to a matter of expectation or

(6) A representation may be withdrawn or corrected

(7) Whether a particular representation be material

belief is true if it be made in good faith.

before the contract is concluded.

or not is, in each case, a matter of fact.

26. A contract of marine insurance is deemed to be con-
cluded when the proposal of the assured is accepted by the
insurer, whether the policy be 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 be
unstamped.

The Policy
27. Subject to the provisions of any enactment, a contract

of marine insurance is inadmissible in evidence unless it is
embodied in a marine policy in accordance with this Act.
The policy may be executed and issued either at the time
when the contract is concluded or afterwards.

28. 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; and
(e) the name or names of the insurers.

29.-(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

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MARINE INSURANCE

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
be expressed, constitutes a distinct contract with the assured.

30.-(1) Where the contract is to insure the subject- Voyage
matter “at and from”, or from one place to another or andtime*
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 con-
tract 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:

Provided that a time policy may contain an agreement to
the effect that, in the event of the ship being at sea or the
voyage being otherwise not completed on the expiration of
the policy, 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;
and the policy shall not be invalid on the ground only that
by reason of such agreement it may become available for
a period exceeding twelve months.

31.-(1) The subject-matter insured must be designated Designation
of subject-
matter. 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.

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16 MARINE INSURANCE

Valued
policy.

Unvalued
policy.

Floating
policy by
ship or
ships.

(4) In the application of this section regard shall be
had to any usage regulating the designation of the subject-
matter insured.

32.41) 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 the assured, conclusive of the insurable
value of the subject intended to be insured, whether the
loss be 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.

33. 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 specified in section
21.

34.41) 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 indorsement on the policy, or in other customary
manner.

(3) Unless the policy otherwise provides, the declara-
tions must be made in the order of dispatch 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

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MARINE lNSURANCE 17

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.

35.-(1) A policy may be in the form in the Schedule. Construction
of terms

(2) Subject to the provisions of this Act, and unless in Schedule, policy.
the context of the policy otherwise requires, the terms and
expressions mentioned in the Schedule shall be construed
as having the scope and meaning in that Schedule assigned
to them.

36.-(1) Where an insurance is effected at a premium to p r m i m
be arranged, and no arrangement is made, a reasonable to arranged. be
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.

Double Insurance
37.-(1) Where two or more policies are effected by or on Double

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 over-insured
by double insurance.

(2) Where the assured is over-insured by double
insurance-

(a) the assured, unless the policy otherwise provides,
may claim payment from the insurers in such order
as he may think fit, provided that he is not entitled
to receive any sum in excess of the indemnity
allowed by this Act;

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18 MARINE INSURANCE

Nature of
warranty,

When
breach of
warrant
excused.

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;
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;
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.

Warranties, etc.
38.-(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 partic-
ular 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 it be material
to the risk or not. If it be not so complied with, then, subject
to any express provision in the policy, the insurer is dis-
charged from liability as from the date of the breach of
the warranty, but without prejudice to any liability incurred
by him before that date.

39.-(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.

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MARINE INSURANCE 19

(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.

40.41) An express warranty may be in any form of Express

(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 be inconsistent therewith.

words from which the intention to warrant is to be inferred. warranties.

4 1 . 4 1) Where insurable property, whether ship or goods, Warranty of
neutrality. 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 pre-
served 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, she shall be properly documented,
that is to say, that she shall carry the necessary papers to
establish her neutrality, and that she shall not falsify or
suppress her papers, or use simulated papers. If any loss
occurs through breach of this condition, the insurer may
avoid the contract.

42. There is no implied warranty as to the nationality ~ o i m p l i e d
of a ship, or that her nationality shall not be changed during nationality.
the risk.

warranty of

43. Where the subject-matter insured is warranted “well” z $ ~ z t y
or “in good safety” on a particular day, it is sufficient if it safety.
be safe at any time during that day.

me inclusion of this page is authorized by L.N. 480/1973]

20 MARINE INSURANCE

Warranty
of sea-
worthiness
of ship.

No implied
warranty
that goods
are seaworthy.

44.41) 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.

45.-(1) In a policy on goods or other moveables there is
no implied warranty that the goods or moveables are sea-
worthy.

(2) In a voyage policy on goods or other moveables
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
moveables to the destination contemplated by the policy.

Warmnty 46. There is an implied warranty that the adventure
insured is a lawful one, and that, so far as the assured can of legality.

me inclusion of this page is authorized by L.N. 480119731

MARINE INSURANCE 21

control the matter, the adventure shall be carried out in a
lawful manner.

The Voyage
47.-(1) Where the subject-matter is insured by a voyage Implied

policy “at and from” or “from” a particular place, it is not Z:ftion
necessary that the ship should be at that particular place zgyzy
when the contract is concluded, but there is an implied risk.
condition that the adventure shall be commenced within
a reasonable time, and that if the adventure be 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 by
showing that he waived the condition.

48. Where the place of departure is specified by the Alteration
of port of

policy, and the ship, instead of sailing from that place, sails d eprrture.
from any other place, the risk does not attach.

49. Where the destination is specified in the policy, and Sailingfor
diffaent

the ship, instead of sailing for that destination, sails for any d atination.
other destination, the risk does not attach.

50.-(1) Where, after the commencement of the risk, the Changeof
destination of the ship is voluntarily changed from the VOYQW
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.

me inclusion of this page is authorized by L.N. 480/1973]

22 MARINE INSURANCE

Deviation. 51.-( 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 contem-
plated by the policy-

(a) where the course of the voyage is specifically desig-
nated 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 custom-
ary course is departed from.

(3) The intention to deviate is immaterial; there must
be a deviation in fact to discharge the insurer from his liabil-
ity under the contract.

Several

discharge. ports of

5 2 4 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 con-
trary, 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”, with-
in 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.

Delay in
voyage.

53. In the case of a voyage policy, the adventure insured
must be prosecuted throughout its course with reasonable
dispatch, and, if without lawful excuse it is not so pro-
secuted, the insurer is discharged from liability as from the
time when the delay became unreasonable.

me inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 23

54.-(1) Deviation or delay in prosecuting the voyage Excusesfor
deviation
or delay. contemplated by the policy is excused-

(a) where authorized 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

(4 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 be 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 pro-
secu te her voyage, with reasonable dispatch.

Assignment of Policy
55.-(1) A marine policy is assignable unless it contains Whenand

how policy
able.

terms expressly prohibiting assignment. It may be assigned is aagn-

(2) Where a marine policy has been assigned so as to
pass the beneficial interest in such 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.

either before or after loss.

me inclusion of this page is authorized by LN. 480/1973]

24 MARINE INSURANCE

Assured
who has no
interest
cannot
assign.

When
premium
payable.

Policy
effected
through
broker.

Effect of
receipt on
policy.

(3) A marine policy may be assigned by indorsement
thereon or in other customary manner.

56. Where the assured 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 assign-
ment of a policy after loss.

The Premium
57. Unless otherwise agreed, the duty of the assured or

his agent to pay the premium, and the duty of the insurer to
issue the policy to the assured or his agent, are concurrent
conditions and the insurer is not bound to issue the policy
until payment or tender of the premium.

58.-(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.

59. Where a marine policy effected on behalf of the
assured by a broker acknowledges the receipt of the

[The inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 25

premium, such acknowledgement is, in the absence of
fraud, conclusive as between the insurer and the assured,
but not as between the insurer and broker.

Loss and A bandonment
60.-(1) Subject to the provisions of this Act, and unless Included

the policy otherwise provides, the insurer is liable for any and excluded
loss proximately caused by a peril insured against, but, 10sses-
subject as aforesaid, he is not liable for any loss which is
not proximately caused by a peril insured against.

(2) In particular-
(U) 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 be 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 proxi-
mately caused by rats or vermin, or for any injury
to machinery not proximately caused by maritime
perils.

61.-(1) A loss may be either total or partial. Any loss Partid
other than a total loss, as hereinafter defined, is a partial loss. and total
loss.

(2) A total loss may be either an actual total loss,
or a constructive total loss.

[The inclusion of this page is authorized by L.N. 480/1973]

26 MARlNE INSURANCE

Actual
total loss.

Missing
ship.

Effect of
trans-
shipment,
etc.

Constructive
total loss
defined.

(3) Unless a different intention appears from the
terms of the 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 the 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 of identification, the loss, if any, is partial, and
not total.

62.41) 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.

63. 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.

64. 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 dreightment, to justify the master in landing
and re-shipping the goods or other moveables, or in trans-
shipping them, and sending them on to their destination, the
liability of the insurer continues, notwithstanding the land-
ing or trans-shipment.

65.-(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

[The inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 27

total loss appearing to be unavoidable, or because it could
not be preserved from actual loss without an expenditure
which would exceed its value when the expenditure has
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. 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; 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.

66. Where there is a constructive total loss the assured Effatof
may either treat the loss as a partial loss, or abandon the totalloss.
subject-matter insured to the insurer and treat the loss as
if it were an actual total loss.

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 only be treated as a partial loss.

constructive

67.-(1) Subject to the provisions of this section, where Notice of

me inclusion of this page is authorized by L.N. 480/1973]

28 MA RlNE INSURANCE

(2) Notice of abandonment may be given in writing,
or 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 enquiry.

(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 accept-
ance.

(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.

Effect of 68.-(1) Where there is a valid abandonment the insurer
is entitled to take over the interest of the assured in what-
ever may remain of the subject-matter insured, and all
proprietary rights incidental thereto.

abandon-
ment.

m e inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 29

(2) Upon the abandonment of a ship, the insurer
thereof is entitled to any freight 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.

Partial Losses (Including Salvage and General Average
and Particular Charges)

69.-(1) A particular average loss is a partial loss of the Particular
average subject-matter insured, caused by a peril insured against, loss.

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.

70.41) Subject to any express provision in the policy, :;E.
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 con-
tract. They do 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.

71.41) A general average loss is a loss caused by or General
directly consequential on a general average act. It includes loss. average
a general average expenditure as well as a general average
sacrifice.

[The inclusion of this page is authorized by L.N. 480/1973]

30 MARINE INSURANCE

(2) There is a general average act where any extra-
ordinary sacrifice or expenditure is voluntarily and reason-
ably made or incurred in time of peril for the purpose of
preserving the property imperilled in the common adven-
ture.

(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 expen-
diture, 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
these interests, are owned by the same assured, the liability
of the insurer in respect of general average losses or con-
tributions is to be determined as if those subjects were
owned by different persons.

[The inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 31

Measure of Indemnity
7 2 . 4 1) The sum which the assured can recover in respect Extent of

!iability of of a loss on a policy by which he is insured, in the case of insurer
an unvalued policy to the full extent of the insurable value, forlOss.
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 be more than
one, is liable for such proportion of the measure of indemn-
ity 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.

73. Subject to the provisions of this Act and to any Totalloss.
express provision in the policy, where there is a total loss
of the subject-matter insured-

(a) if the policy be a valued policy, the measure of
indemnity is the sum fixed by the policy;

(b) if the policy be an unvalued policy, the measure of
indemnity is the insurable value of the subject-
matter insured.

74. Where a ship is damaged, but it is not totally lost, Partial~oss
the measure of indemnity, subject to any express provision Of ship*
in the policy, is as follows-

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;
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 :

[The inclusion of this page is authorized by L.N. 480119731

32 MARINE INSURANCE

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 unre-
paired damage, but not exceeding the reasonable
cost of repairing such damage, computed as above.

75. 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.

76. Where there is a partial loss of goods, merchandise
or other moveables, the measure of indemnity, subject to any
express provision in the policy, is as follows-

(a) where part of the goods, merchandise or other
moveables 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 un-
valued policy;

(b) where part of the goods, merchandise or other
moveables insured by an unvalued policy is totally
lost, the measure of indemnity is the insurable value
of the part lost, ascertained as in the 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

Partialloss
of freight.

Partidloss

merchan-
of goods,

dise, etc.

[The inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 33

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 be 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 merchan-
dise customarily sold in-bond, the bonded price is
deemed to be the gross value;

(e) “gross proceeds” means the actual price obtained
at a sale where all charges on sale are paid by
the sellers.

77.-(1) Where different species of property are insured Apportion-
ment of under a single valuation, the valuation must be apportioned valuation.

over the different species in proportion to their respective
insurable values, as in the case of an unvalued policy.
The insured value of any part of a species in 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, ascer-
tained in both cases as provided by this Act.

(2) 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 descrip-
tions of goods.

78.-(1) Subject to any express provision in the policy, Gened
where the assured has paid, or is liable for, any general gzru-
average contribution, the measure of indemnity is the full z;;;,d
amount of such contribution, if the subject-matter liable to charges.
contribution is insured for its full contributory value; but, if

[The inclusion of this page is authorized by L.N. 480/1973]

34 MARINE INSURANCE

Liabilities
to third
parties.

General
provisions
as to
measure of
indemnity.

Particular
average
warranties.

such subject-matter be not insured for its full contributory
value, or if only part of it be 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.

79. Where the assured has effected an insurance in ex-
press 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.

80.-(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.

81.41) 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
be apportionable; but, if the contract be apportionable, the

[The inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 35

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.

82.-(1) Unless the policy otherwise provides, and subject Successive
to the provisions of this Act, the insurer is liable for succes- losscs.
sive 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:

Provided that nothing in this section shall affect the
liability of the insurer under the suing and labouring clause.

83.-(1) Where the policy contains a suing and labouring Suingand
labouring clause, the engagement thereby entered into is deemed to clause.

be supplementary to the contract of insurance, and the
assured may recover from the insurer any expenses properly

[Tbe inclusion of this page is authorized by L.N. 480/1973]

36 MARINE INSURANCE

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 minimizing a loss.

Rights of Insurer on Payment
84.-(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 then 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.

Right of
subrogation.

Right of 85.-(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 pro-

contnbu-
tion.

me inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 37

portion 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 contribu-
tion against the other insurers, and is entitled to the like
remedies as a surety who has paid more than his proportion
of the debt.

86. Where the assured is insured for an amount less Effectof
than the insurable value or, in the case of a valued policy, &FA;ce.
for an amount less than the policy valuation, he is deemed
to be his own insurer in respect of the uninsured balance.

Return of Premium
87. Where the premium or a proportionate part thereof Enforce-

(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.

ment of
return. is, by this Act, declared to be returnable-

88. Where the policy Contains a stipulation for the Returnby
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.

89.-(1) Where the consideration for the payment of the Returnfor
premium totally fails, and there has been no fraud or failure conid ra- of
illegality on the part of the assured or his agents, the tion.
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.

F e inclusion of this page is authorized by L.N. 480/1973]

38 MARINE INSURANCE

(3) In particular-
where the policy is void, or is avoided by the
insurer 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;
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;
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;
where the assured has a defeasible interest which
is terminated during the currency of the risk, the
premium is not returnable;
where the assured has over-insured under an un-
valued policy, a proportionate part of the premium
is returnable;
subject to the foregoing provisions, where the
assured has over-insured 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

[Tne inclusion of this page is authorized by L.N. 480119731

MARINE INSURANCE 39

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.

Mutual Insurance

90.-(1) Where two or more persons mutually agree to Modifica-
insure each other against marine losses there is said to be incaseof tion of Act

mutual
insurance. a mutual insurance.

(2) The provisions of this Act relating to the pre-
mium 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 regu-
lations of the association.

(4) Subject to the exceptions mentioned in this
section, the provisions of this Act apply to a mutual insu-
rance.

Supplemental

91. Where a contract of marine insurance is in good Ratifica-
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 a loss.

92.-(1) Where any right, duty, or liability would arise Implid

law, it may be negatived or varied by express agreement, ;+;zt
or by usage, if the usage be such as to bind both parties
to the contract.

obligations
under a contract of marine insurance by implication of varied by

--
me inclusion of this page is authorized by L.N. 480/1973]

40 MARlNE INSURANCE

(2) The provisions of this section extend to any right,
duty, or liability declared by this Act which may be lawfully
modified by agreement.

Reasonable

question
Offact.

93. Where by this Act any reference is made to reason-
able time, reasonable premium, or reasonable diligence, the
question what is reasonable is a question of fact.

time, etc., a

Slip as
evidence.

94. Where there is a policy which, under the law in
force in this Island, is duly stamped or not chargeable with
stamp duty, reference may be made in any legal proceeding
to the slip or covering note (although such slip or note is
not stamped) for the same purposes and to the same extent
as may be made in similar proceedings in the United
Kingdom on the 20th August, 1973.

Repeal. 95. The Marine Insurance Act, 1959, of the Laws of the
West Indies, in its application to Jamaica, is hereby repealed
but without prejudice to anything done or suffered there-
under, or any right, privilege, obligation, or liability
acquired, accrued, or incurred, thereunder.

F e inclusion of this page is authorized by L.N. 480/1973]

MARINE INSURANCE 41

SCHEDULE (Section 35)

Form of Policy

Be it known that as well in own name Lloyd’s
as for and in the name and names of all and every other person or S.G.PolicY-
persons to whom the same doth, may, or shall appertain, in part or
in all, doth make assurance and cause
and them, and every of them, to be insured lost or not lost, at and
from
Upon any kind of goods and merchandises, and also upon the body,
tackle, apparel, ordnance. munition, artillery, boat, and other furniture,
of and in the good ship or vessel called the
whereof is master under God, for this present voyage,

or whosoever else shall go for master in the
said ship, or by whatsoever other name or names the same ship, or
the master thereof, is or shall be named or called; beginning the
adventure upon the said goods and merchandises from the loading
thereof aboard the said ship,
upon the said ship, etc.,
and so shall continue and endure, during her abode there, upon the
said ship, etc. And further, until the said ship, with all her ordnance,
tackle, apparel, etc., and goods and merchandises whatsoever shall be
arrived at
upon the said ship, etc., until she hath moored at anchor twenty-four
hours in good safety; and upon the goods and merchandises, un:il the
same be there discharged and safely landed. And it shall be lawful for
the said ship, etc., in this voyage, to proceed and sail to and touch and
stay at any ports or places whatsoever and wheresoever for all purposes
without prejudice to this insurance. The said ship, etc., goods and
merchandises, etc., for so much as concerns the assured by agreement
between the assured and assurers in this policy, are and shall be
valued at

Touching the adventures and perils which we the assurers are
contented to bear and do take upon us in this voyage: they are of
the seas, men of war, fire. enemies, pirates, rovers, thieves, jettisons,
letters of mart and countermart. surprisals, takings at sea. arrests,
restraints, and detainments of all kings, princes, and people, of what
nation, condition, or quality soever. barratry of the master and mariners,
and of all other perils, losses. and misfortunes, that have or shall come
to the hurt, detriment, or damage of the said goods and merchandises,
and ship, etc., or any part thereof. And in the case of any loss or (Sueand
misfortune it shall be lawful to the assured, their factors, servants and labour
assigns to sue, labour, and travel for, in and about the defence. safe-
guards, and recovery of the said goods and merchandises, and ship,
etc., or any part thereof, without prejudice to this insurance; to the
charges whereof we, the assurers, will contribute each one according
to the rate and quantity of his sum herein assured.

me inclusion of this page is authorized by L.N. 480/1973]

42 MARINE INSURANCE

(Waiver
clause.)

And it is especially declared and agreed that no acts of the insurer
or insured in recovering, saving, or preserving the property insured
shall be considered as a waiver, or acceptance of abandonment. And
it is agreed by us, the insurers, that this writing or policy of assurance
shall be of as much force and effect as the surest writing or policy of
assurance heretofore made in Lombard Street, or in the Royal Exchange,
or elsewhere in London. And so we, the assurers, are contented, and
do hereby promise and bind ourselves each one for his own part, our
heirs, executors, and goods to the assured, their executors, administra-
tors, and assigns, for the true performance of the premises, confessing
ourselves paid the consideration due unto us for this assurance by
the assured, at and after the rate of

IN WITNESS whereof we, the assurers, have subscribed our names
and sums assured in London, as hereinafter appears.

N.B.-Corn. fish, salt, fruit, flour, and seed are warranted free from
average, unless general, or the ship be stranded-sugar, tobacco,
hemp, flax, hides and skins are warranted free from average, under
five dollars per cent, and all other goods, also the ship and freight,
are warranted free from average, under three dollars per cent, unless
general, or the ship be stranded.

(Memo-
randum.)

Rules for Construction of Policy
The following are the rules referred to by this Act for the construc-

tion of a policy in the above or other like form, 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 in that place in good safety when the contract is concluded,
the risk attaches immediately;

(b) If she be 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 be 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 ruta as the goods or merchandise are shipped:

m e inclusion of this page is authorized by L.N. 480/1973]

Lost or
notlost.

From.

Atandfrom
(Sip.)

Freight.

MARINE INSURANCE 43

Provided that if there be cargo in readiness which belongs to the
ship-owner, 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.

thereof”, the risk does not attach until such goods or moveables are loading
actually on board, and the insurer is not liable for them while intransit thereof.
from the shore to the ship.

5. Where the risk on goods or other moveables continues until they Safely
are “safely landed”, they must be landed in the customary manner landed-
and within a reasonable time after arrival at the port of discharge, and
if they are not so landed the risk ceases.

touch and stay “at any port or place whatsoever” does not authorize stay-
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 Perilsof
or casualties of the seas. It does not include the ordinary action of theseas.
wind and waves.

8. The term “pirates” includes passengers who mutiny and rioters Pirates.
who attack the ship from the shore.

9. The term “thieves” does not cover clandestine theft or a theft Thieves.
committed by anyone of the ship’s company, whether crew or
passengers.

10. The term “arrests, etc., of kings, princes and people” refers to Restraint
political or executive acts, and does not include a loss caused by riot o*Princes.
or by ordinary judicial process.

11. The term “barratry” includes every wrongful act wilfully com- Barratry.
mitted by the master or crew to the prejudice of the owner, or, as the
case may be, the charterer.

4. Where goods or other moveables are insured “from the loading From the

6. In the absence of any further licence or usage, the liberty to Touchand

12. The term “all other perils” includes only perils similar in kind NI other
perils.

13. The term “average unless general” means a partial loss of the Average
subject-matter insured other than a general average loss, and does not unless include “particular charges”. general.

losses, although the loss is not attributable to the stranding:

and, if the policy be on goods, that the damaged goods are on board.

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,

m e inclusion of this page is authorized by L.N. 480/1973]

to the perils specifically mentioned In the policy.

14. Where the ship has stranded, the insurer is liable for the excepted Stranded.

Provided that when the stranding takes place the risk has attached

15. The term “ship” includes the hull, materials and outfit, stores Ship.

44 MARINE INSURANCE

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 ship-owner
from the employment of his ship to carry his own goods or moveables.
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.

In the absence of any usage to the contrary, deck cargo and living
animals must be insured specifically, and not under the general deno-
mination of goods.

Freight.

Goods.

[The inclusion of this page is authorized by L.N. ’480/1973]

Related Laws