The impact of the Marine Insurance Act 1906

Insurance is defined as “any contract whereby one party assumes the hazard of an unsure event, which is non within his control, go oning at a future clip, in which event the other party has an involvement, and under which contract the first party is bound to pay money or supply its equivalent if the unsure event occurs.” [ 1 ]

The construct of insurance can be traced back many 100s of old ages and it is widely accepted that its beginnings lie within the Maritime domain and its many associated hazards, including harm to and loss of both ships and lading. Historical grounds suggests that the fifteenth and 16th centuries saw major developments in this country as merchandiser split such hazards between them. During the 17th century, the Lloyd’s of London insurance market emerged. Originally, any differences were settled outdoors of the legal system but the tribunals finally accepted legal power over insurance contracts in the 18th century and the jurisprudence continued to develop via the philosophy of judicial case in point.

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In 1906, the common jurisprudence was codified and placed on a statutory terms following the passage of the Marine Insurance Act 1906 ( MIA 1906 ) . The Act was intended to supply certainty between those seeking insurance and those supplying it. In codifying the common jurisprudence, it was hoped that lucidity would predominate, conveying benefits for both parties. Since so, the commissariats of this legislative act have so been far making. Originally drafted to cover with Marine insurance, its influence shortly spread into non-marine domains as the rules of the Act were adopted in relation to assorted other signifiers of insurance. Thus the legislative act non merely deals with marine insurance, but as the Law Commission have acknowledged, it “incorporates general rules of insurance jurisprudence and has been held to use to all signifiers of insurance contracts, non merely to marine insurance.” [ 2 ] It continues to act upon world-wide insurance jurisprudence today, so, Cornah states that “It is hard to over-estimate the influence of the MIA ; many of those states that did non really utilize it as a theoretical account for their ain legislative acts have adopted the standard Institute Clauses which are subtitled as being ‘subject to English Law and practice’.” [ 3 ] Its influence may now be in diminution, nevertheless, following the recent work of the Law Commission in this country. [ 4 ] In order to see the influence of the MIA 1906, it is necessary to see specific countries of commercial insurance.

The Marine Insurance Act 1906 and the Principle of Utmost Good Faith

If there is cogent evidence that the party insured was guilty of deceit, fraud or so, had merely failed to unwrap certain affairs, the insurance company is lawfully entitled to avoid the full contract. Similarly, the insured is required to move in ‘good faith.’ The demand of good religion was famously explained in the instance of Carter v Boehm ( 1766 ) . [ 5 ] In that instance, an insurance policy had been taken out on behalf of the governor of Fort Marlborough – Carter, against loss of the garrison to a foreign power. When the garrison was so taken by such a power, Boehm declined to indemnify Carter on the footing that the failing of the garrison and the likeliness of it being attacked had non been disclosed. The tribunal held that the investment banker was in a better place than the governor to measure the chance of the insured hazard happening and as such, Carter’s responsibility of good religion was discharged since he was non required to unwrap facts which the investment banker either knew or should hold known about.

In the instance, Lord Mansfield summed up the grounds behind the good religion demand as follows:

“Insurance is a contract based upon guess. The particular facts, upon which the contingent opportunity is to be computed, lie most normally in the cognition of the insured merely ; the investment banker trusts to his representation and returns upon the assurance that he does non maintain back any circumstance in his cognition, to misdirect the investment banker into a belief that the circumstance does non be, and to bring on him to gauge the risque as if it did non exist.” [ 6 ]

Therefore, the place is such that if the existent hazard differs from the intended one, the contract of insurance will be null, even if the difference is non due to any fraud on the portion of the insured since the responsibility requires ‘legal’ instead than general good religion. The MIA 1906 put this responsibility on a statutory terms and besides increased the load from that of simple ‘good’ religion to that of the ‘utmost good faith’ . Under subdivision 17 of the MIA 1906, insurance is based upon ‘uberrimae fidei’ – the rule of extreme good religion –

“A contract of Marine insurance is a contract based upon the extreme good religion, and, if the uttermost good religion be non observed by either party, the contract may be avoided by the other party.” [ 7 ]

Section 18 ( 1 ) of the Act states that “Subject to the commissariats of this subdivision, the assured must unwrap to the insurance company, before the contract is concluded, every stuff circumstance which is known to the assured, and the assured is deemed to cognize every circumstance which, in the ordinary class of concern, ought to be known by him. If the assured fails to do such revelation, the insurance company may avoid the contract.” [ 8 ]

In Highlands Insurance Company v Continental Insurance [ 1987 ] , [ 9 ] Justice Steyn stated that the commissariats of the MIA 1906 in relation to utmost good religion apply to marine, non-marine and reinsurance contracts and said

“I would add that the Marine Insurance Act, 1906, was a codification of the common jurisprudence ; that the common jurisprudence should be presumed to be the incarnation of common sense ; and that common sense Rebels against the thought that there should be a difference between Marine and non-marine insurance in relation to non-disclosure and misrepresentation.” [ 10 ] Similarly, the Law Commission have recognised the impact of the MIA 1906 with the statement in their September 2006 paper on representation and non-disclosure:

“Although the issues originate under a policy of non Marine insurance it is convenient to province them by mention to the Marine Insurance Act 1906 since it has been accepted in statement, and is so laid down in several governments, that in relevant respects the common jurisprudence associating to the two types of insurance is the same, and that the Act

embodies a partial codification of the common law.” [ 11 ] This provides yet farther verification of the far-reaching effects of the MIA 1906, outside the kingdom of Marine insurance.

The consequence of this portion of the Act is that parties to the insurance contract must volunteer all material information before the contract is finalised. If the insured fails to unwrap any material facts, the contract is avoided ab initio and will be treated as if it ne’er happened, with the parties being placed in their old pre-contract places.

The really ground for the being of the responsibility is so that both parties are clear upon the footings under which they are undertaking. As such, the cardinal issue in footings of this responsibility of extreme faith revolves around cognition. In footings of the suggester, they need non really be cognizant that they are under a responsibility to unwrap. The responsibility will still adhere them irrespective and therefore existent cognition in this regard is hence irrelevant. This means that the suggester will be apt for all non-disclosure or privacy, be it guiltless or otherwise.

Another relevant issue is that of the proposer’s sentiment as to the nature of certain facts – i.e. does it count whether they consider them to be material or non? A suggester may be surprised to larn that under the MIA 1906, their sentiment sing the material nature or otherwise of any non-disclosed facts is irrelevant and will non hence be taken into consideration. Thus it does non count if they did non believe that the peculiar facts were material. It is adequate that the tribunal considers them to be so.

An extra inquiry in footings of cognition arises in relation to things that the suggester ‘ought’ to cognize and whether constructive cognition equates to existent cognition. As seen above, under subdivision 18 ( 1 ) of the MIA 1906, the assured is deemed to cognize everything which ought to be known by him. Case jurisprudence on the affair has been conflicting. In Joel V Law Union and Crown Insurance Company [ 1908 ] [ 12 ] it was stated that in position of the fact that the responsibility was to unwrap, “you can non unwrap what you don’t know.” [ 13 ] In Pan Atlantic Insurance Company v Pine Top Insurance Company [ 1994 ] [ 14 ] , the tribunal had held that the insurance regulation and general contract jurisprudence were one and the same but that changed with Economides v Commercial Union Assurance plc [ 1997 ] . In that instance, the insured had taken out a family contents policy with the insurance companies in regard of contents to the value of ?12,000. The insured’s parents subsequently moved into his level with assorted valuable points, whereupon the insured increased his contents cover to ?16,000. In fact, the points had an estimated value of about ?30,000 and when the flat was broken into, the insurance companies denied liability on the footing of the insured’s deceit and his failure to unwrap material facts. On the facts, the tribunal held that the insurance companies did hold to indemnify the insured since he had an honorable belief in the replacing value of the goods being ?16,000 and the tribunal accepted his statement that there was no actionable non-disclosure. Therefore every bit long as the insured is honest and has non willfully ignored a material fact, so they have discharged their responsibility.

In order to see whether this is the instance, it is necessary to find what amounts to a material fact. Under subdivision 18 ( 2 ) of the Act, everything that would act upon the judgement of a ‘prudent insurer’ when make up one’s minding upon a premium or so, whether to accept the hazard at all, is to be considered a material circumstance. In Lambert v Co-operative Insurance Society [ 1975 ] , [ 15 ] it was held that this trial laid down in subdivision 18 of the MIA 1906 applied to both marine and non-marine insurance instances, as the Court of Appeal acknowledged the Act as a codification of the old common jurisprudence, which had applied to both types of insurance.

Under subdivision 18 ( 3 ) , in the absence of enquiry, certain fortunes do non hold to be disclosed. These are –

“ ( a ) Any circumstance which diminishes the hazard ;

( B ) Any circumstance which is known or presumed to be known to the insurance company. The insurance company is presumed to cognize affairs of common ill fame or cognition, and affairs which an insurance company in the ordinary class of his concern, as such, ought to cognize ;

( degree Celsius ) Any circumstance as to which information is waived by the insurance company ;

( vitamin D ) Any circumstance which it is otiose to unwrap by ground of any express or implied warranty.” [ 16 ]

Under subdivision 18 ( 4 ) , whether a circumstance is considered stuff or non is a affair of fact in each instance. As the determination is one for the ‘prudent insurance company, ’ the tribunals will take grounds from other insurance companies as to the material nature of the peculiar fact in inquiry. Their sentiments are simply grounds, nevertheless and need non be accepted, as seen in Roselodge Ltd v Castle [ 1966 ] [ 17 ] when an insurance expert gave grounds that a proposer’s stripling act of stealing apples would be a material circumstance. The justice refused to accept that this act entirely, committed aged 17 would forestall the insurance company from allowing insurance to the adult male when aged 67 and declared it an utmost position. [ 18 ]

The instance of Pan Atlantic v Pine Top [ 1994 ] brought the construct of incentive into the non-disclosure domain when the House of Lords held that non merely must the fact have been material, it must besides hold induced the contract. In St Paul Fire Marine Insurance Company Ltd V McDonnell Constructors Ltd [ 1995 ] [ 19 ] the Court of Appeal followed the pronouncement in Pan Atlantic that there was a factual given of incentive. Following this instance, if a fact is material, the tribunal may assume that there was inducement unless it can be shown otherwise.

The inquiry has besides arisen as to how far the responsibility of extreme good religion extends – i.e. whether it is complete at the clip the contract is made or whether it extends beyond the decision of the contract. The reply can be found in the instance of Manifest Shipping Co. Ltd. v. Uni-Polaris Insurance Co. Ltd. and La ReI?union EuropeI?ene ( The Star Sea ) [ 2001 ] . [ 20 ] In this instance, it was held that the responsibility of extreme good religion is a go oning one and therefore applies beyond the decision of the contract.

In footings of redresss for breach, there is no right to amendss, as held by the Court of Appeal in Banque Keyser Ullmann SA v Skandia ( UK ) Insurance Company Ltd. [ 1990 ] [ 21 ] due to the fact that there is no reference of amendss in the MIA 1906 in relation to the responsibility of extreme good religion. Again, the influence of the MIA 1906 can be seen with the undermentioned quotation mark from Slade LJ

“We think the clear illation from the Act of 1906 is that Parliament did non contemplate that a breach of the duty would give rise to a claim for amendss… Otherwise it would certainly hold said so. It is non suggested that a redress is available in the instance of non-marine policies which would non be available in the instance of Marine policies.” [ 22 ]

The redress available for a breach by either the insured or the insurance company is turning away of the contract, which allows the party who is non in breach to avoid the full policy. This is frequently viewed as a rough redress, non least in instances where there has been an guiltless breach. Some have argued for reform in this country as seen in Kausar v Eagle Star [ 1997 ] , Longman LJ called for restraint –

“Avoidance for nonA­disclosure is a drastic redress. It enables the insurance company to disclaim liability after, and non earlier, he has discovered that the hazard turns out to be a bad one ; it leaves the insurance company without the protection which he thought he had contracted and paid for… I do see that there should be some restraint in the operation of the doctrine.” [ 23 ]

If there is a breach of the responsibility of extreme good religion, the policy continues to stay binding until it is avoided If it is non avoided within a sensible period, after the breach is discovered, the right to avoid will be lost wholly. This is because the party who is non in breach will be treated as holding affirmed the contract. Similarly, the party who is non in breach may really take to confirm the contract once they are cognizant of the breach and their right to avoid. Avowal can be demonstrated through words or behavior and it is a affair for the tribunal to find whether the contract has in fact been affirmed.

In this country hence, the impact of the MIA 1906 has been tremendous, as it had the consequence of rendering all insurance contracts subject to the rule of extreme good religion. The commissariats of the Act in relation to this responsibility have been the topic of some unfavorable judgment, nevertheless. The Law Commission claims that the Act imposes “heavy responsibilities on those using for insurance.” [ 24 ] The load on the suggester will non be discharged unless they have volunteered all information that would act upon the underwriter’s hazard appraisal. If non, the insurance policy fails and any and all claims made under it will needfully neglect.

The Marine Insurance Act 1906 and Guarantees

Harmonizing to Birds, a guarantee in insurance jurisprudence is basically “a term affecting a promise by the insured that controls the hazard run by the insurer.” [ 25 ] Unlike traditional contract jurisprudence, guarantees in insurance jurisprudence are considered to be a cardinal term of the insurance contract instead than a more minor term. There are three types of guarantee which differ harmonizing to what the promise relates to. Guarantees of sentiment involves the suggester justifying the truth of a peculiar fact to the best of his cognition. Guarantees of yesteryear or present fact relate to facts that have or presently exist. In comparing, promissory or go oning guarantees relate to fortunes in the hereafter.

Guarantees are covered in the MIA 1906 under subdivision 33 ( 1 ) where they are defined as ‘promissory’ which means “a guarantee by which the assured undertakes that some peculiar thing shall or shall non be done, or that some status shall be fulfilled, or whereby he affirms or negatives the being of a peculiar province of facts.” [ 26 ] Section 33 ( 2 ) provinces that a guarantee may be either show or implied.

Guarantees, hence, may be created in a assortment of ways. The phrase ‘warranty’ may be used to denote that the term should be considered as such but following CTN Cash and Carry Ltd v General Accident Fire and Life Assurance Group plc [ 1989 ] [ 27 ] this may non be plenty, as the tribunal will see the purpose of the parties in finding the exact nature of a term. Thus despite the usage of the word itself, it may non amount to a guarantee if the tribunal considers that that was non what the parties had in head. Similarly, merely because the word ‘warranty’ is non employed, it does non intend that a peculiar term does non hold that consequence, as it is ever unfastened to the tribunal, on a affair of building, to find that the term is so a guarantee. The position of a term is non ever clear, nevertheless, particularly when the tribunals themselves use different nomenclature to depict the same term – for illustration, mentioning to a ‘warranty’ as a ‘condition’ . In add-on, the fact that similar footings are non held to hold the same position is besides a affair for confusion.

Under subdivision 33 ( 3 ) of the MIA 1906, if the guarantee is non precisely complied with

so without express proviso to the contrary, the insurer’s liability is discharged from the day of the month of the breach. It is immaterial whether any breach relates to a loss, as seen in De Hahn V Hartley ( 1786 ) [ 28 ] when a guarantee in the marine insurance policy required a ship to sail with 50 custodies or more. When the ship set off, there were merely 46 custodies on board but it docked six hours subsequently and picked up 6 more. When the ship was subsequently lost, the insurance companies refused to pay and the tribunals agreed that there was no liability, since the guarantee had been breached. Harmonizing to the rules of freedom of contract, both parties had agreed to the guarantee and the insurance companies were hence able to anticipate rigorous public presentation, despite the fact that the breach had nil to make with the ulterior loss of the ship. Under subdivision 34 ( 2 ) of the MIA 1906, one time there has been a breach of guarantee, it does non count if that breach was remedied prior to any loss being incurred since this is no defense mechanism.

The effects of a breach under the MIA 1906 are hence highly serious and reform has been recommended in this country by the Law Commission who have stated that “The jurisprudence on breach of guarantee has the possible to do considerable unfairness to policyholders by leting insurance companies to avoid paying claims for proficient grounds, which are unconnected with the loss that has occurred.” [ 29 ] It has long been felt in many quarters that the Marine Insurance Act 1906 imposes excessively terrible a punishment in many instances, peculiarly when the breach is unrelated to the loss. [ 30 ]

The House of Lords confirmed the rigorous nature of the regulation in Bank of Nova Scotia V Hellenic Mutual War Risks Association ( Bermuda ) Ltd, ( The Good Luck ) [ 1991 ] [ 31 ] in which it was held that conformity with the guarantee is a pre-condition to the insurer’s liability therefore, insurance companies can trust on any breach of guarantee as a defense mechanism. In that instance, a guarantee non to come in a forbidden country was breached by a ship proprietor and had the consequence of automatically stoping the insurance under subdivision 33 ( 3 ) of the MIA 1906.

Hare claims that “sections 33 and 34 reinforce the position of the guarantee in English jurisprudence as the ultimate trump card in the insurer’s manus. It has the consequence of pardoning an insurance company on history of any breach of guarantee by the insured, causative or non-causative, fiddling or stuff. It is, potentially at least, the atomic arm of the English Marine insurance policy.” [ 32 ] The influence of this subdivision and its potentially rough effects nevertheless has gone beyond Marine jurisprudence and into the domain of non-marine insurance contracts. The influence of the MIA 1906 can be seen in the non-marine insurance instance of Hussain v Brown [ 1996 ] [ 33 ] when the investment bankers claimed that an reply in the proposal signifier was a go oning guarantee with respects to the status and position of a burglar dismay. The insurance companies stated that a breach of this guarantee hence exempted them from liability. It was held at first case that the guarantee related merely to the province of personal businesss at the clip that the signifier was signed and did non supply a go oning guarantee with respects to the hereafter. This determination was upheld on entreaty.

The tribunals have, nevertheless found a manner to extenuate the rough effects of a breach of guarantee by following the contra proferentem regulation in position of the fact that it is normally the insurance company who writes the footings of the contract. The application of the regulation can be seen in Provincial Insurance Company v Morgan [ 1933 ] [ 34 ] when the insured answered a inquiry on a standard motor insurance policy saying that his lorry would be used to transport coal. The insurance companies sought to disown liability after the lorry was damaged, on the footing that it had carried lumber every bit good as coal and hence had breached the go oning guarantee that the vehicle would be used entirely to transport coal. On the facts, the tribunal held that the diction used did non represent a guarantee and so the insurance companies were unable to deny liability.

Therefore in footings of influence in the country of guarantees, the MIA 1906 has had a profound consequence in several ways. First, its commissariats have prevailed in footings of the significance of the term ‘warranty’ which differs from its usage in general contract jurisprudence, where it is a minor instead than the cardinal term that it is in an insurance contract. In add-on, the statute’s rigorous commissariats in footings of breach have been held to use to both marine and non-marine insurance, which has led to unfavorable judgment and calls for reform as a consequence of its possible unfairness.

Decision

In decision, the impact of the MIA 1906 on the development of non-marine insurance has been huge. Under subdivision 17 of the MIA 1906, the rule of ‘uberrimae fidei’ – or utmost good religion applies to all insurance contracts. In add-on,

Section 18 of the Act states ensures that all material fortunes must be disclosed. The consequence of these subdivisions is that parties to an insurance contract must volunteer all material information, if the contract is non to be avoided ab initio. Both subdivisions hence have far making effects in footings of insurance contracts.

Similarly, the MIA 1906 has besides been a major influence in footings of guarantees under subdivisions 33 and 34. The consequence of these subdivisions is that the insurer’s liability is discharged from the day of the month of the breach, if the guarantee is non complied with. This is the instance regardless of whether any breach really relates to a loss. Again, the rigorous nature of the jurisprudence in this country has led to some rough determinations but the tribunals have tried to extenuate this on some occasions.

There can be no uncertainty, hence that the impact of the MIA 1906 has been far from benign and surely, insurance jurisprudence in footings of uttermost good religion and guarantees has developed steadfastly under its shadow. Whether the MIA 1906 will go on to exercise the influence that it has antecedently done, nevertheless is another affair. As the Law Commission stated in their recent audience paper, “the 1906 Act is an impressive piece of work: it covers much land and is written in clear, blunt footings. However, the tribunals have found it hard to develop the rules of the statute jurisprudence or to accommodate them to altering economic conditions. Although the nature of the insurance market has changed markedly, insurance jurisprudence remains much as it was a hundred old ages ago.” [ 35 ] The Law Commission are merely one of a figure of organic structures that have called for reform in this country, non least to alter some of the MIA’s rough effects. In peculiar, calls have been made to stop the state of affairs whereby the insurance company is entitled to avoid a policy despite the fact that the insured has acted both candidly and moderately. Similarly, unfavorable judgment has been made of the fact that an insurance company is able to disown a policy for breach of a guarantee that is in no manner stuff to the hazard. The reappraisal of these countries by the Law Commission is on-going, so for the interim the influence of the MIA 1906 is set to go on.

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