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The first principle makes it clear, that insurance is not mere gambling; the marine Insurance Act prohibits the insurance of any ‘property’ or ‘adventure’ in which a person has no insurable interest.
Law defines the’ insurable interest’ as :
“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 damage thereto, or by the detention thereof, or may incur liability in respect thereof,” circumstances, a person, not owning a ship, can also insure the ship, but only to the extent of his interest in the ‘adventure’ Thus a person can take insurance in certain circumstances, such as:
1 The Master, who has advanced wages to the crew, has an insurable interest in the ‘adventure’, but only to the extent of wages advanced. He can insure the ship against total loss of vessel during the voyage, but only for the amount advanced.
2 The lender of money on buttery bond or respondent has art insurable interest to the extent of the loan. This happened in the old days, when the Master of a vessel, in a Port of refuge, took a loan (from a money lender) on the security of the ship (buttery bond) or its cargo (respondent).
Thus, this principle allows only genuine parties to take insurance, making it illegal for any other disinterested party to take insurance, as this is then tantamount to gambling.
2. Utmost Good Faith:
For all commercial transactions, the principle that applies is ‘Buyers Beware’. That is : As a Buyer of any goods, it is his responsibility to be careful, to inspect carefully what you are buying. But for Marine Insurance, it is not considered necessary to inspect the ship or cargo before insuring it, as marine insurance is transacted on the principle of Utmost Good faith.
The Marine Insurance Act. Section 19 stipulates, “A contract of Marine Insurance is a contract based upon the principle of utmost good faith and if the utmost good faith be not observed by either party, the contract may be avoided by the other party.” This throws the obligation of disclosing all material information and all such information has to be true.
What is material information’? The Act, Section 20 (2) provides, “Every circumstance is material, which would influence the judgment of a prudent Insurer, in fixing the premium or determining whether or not he will take the Risk.
Section 20 (4) further provides, “Whether any particular circumstance, which is not disclosed, be material or not is, in each case, a question of fact.”
The insured cannot take the ‘plea of ignorance’, He is bound to know all material information/circumstances, related to his risk If the principle of utmost good faith is not observed the contract becomes. Null and void.
Indemnity is the compensation payable under the policy, whenever a vessel is involved in a Peril, insured against. Section 67 (I) provides, “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.
Measure of indemnity is the amount payable under different situations. Marine insurance places the Insured in the pre-accident position; since if the accident had not occurred, this would have been the case.
In case of Total loss, the Indemnity is the sum insured that is the value for which the vessel is insured, so that the ship’s owner can replace the vessel by a similar one. In case of partial loss, the indemnity is the Repair cost. Under this principle, it is not possible to make a profit, out of any reported ‘Loss’.
This is corollary of the principle of indemnity. It also called the other side of the coin of indemnity. That is no profit from a loss. This can be explained by an example. When a shipper loads cargo, he gets a Bill of Lading, whereby the ship owner undertakes to deliver the cargo at the destination, in the same apparent good order and condition, in which it was received. If at the destination, the cargo is not available for deliver, the consignee has a claim under the Bill of Lading. If he has insured the cargo, against non-delivery’, he also has a claim, under the policy. In order to ensure, that the consignee does not make a profit by recovering both from the ship owner under the bill of lading and also from the underwriters, under the insurance policy, the Underwriters take the following precaution. They ask the insured to provide proof that they have protected their recovery rights from the ship owner, by holding them responsible for the loss and ask the consignee to issue a ‘Letter of Subrogation’, authorizing the insurance company to proceed against the ship owner. In short it stipulates that the consignees, having received payment of claim from the underwriters, are surrendering their rights under the bill of lading to underwriters, who would step in their shoes and recover the loss from the ship
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