Marine Insurance Act 1909
Act No. 11 of 1909 as amended
This compilation was prepared on 14 July 2008
taking into account amendments up to Act No. 73 of 2008
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General's Department, Canberra
Contents
Part I-Preliminary 1
1 Short title and commencement [see Note 1] 1
3 Interpretation 1
4 Saving of rules of common law 1
5 Application of certain Imperial and State Acts 1
6 Application of Act 2
Part II-Marine Insurance 3
Division 1-Limits of Marine Insurance 3
7 Marine insurance defined 3
8 Mixed sea and land risks 3
9 Marine adventure and maritime perils defined 3
Division 2-Insurable Interest 5
10 Avoidance of wagering or gaming contracts 5
11 Insurable interest defined 5
12 When interest must attach 5
13 Defeasible or contingent interest 6
14 Partial interest 6
15 Re-insurance 6
16 Bottomry 6
17 Master's and seamen's wages 6
18 Advance freight 7
19 Charges of insurance 7
20 Quantum of interest 7
21 Assignment of interest 7
Division 3-Insurable Value 8
22 Measure of insurable value 8
Division 4-Disclosure and Representations 9
23 Insurance is uberrimae fidei 9
24 Disclosure by assured 9
25 Disclosure by agent effecting insurance 10
26 Representations pending negotiation of contract 10
27 When contract is deemed to be concluded 11
Division 5-The Policy 12
28 Contract must be embodied in policy 12
29 What policy must specify 12
30 Signature of insurer 12
31 Voyage and time policies 12
32 Designation of subject-matter 13
33 Valued policy 13
34 Unvalued policy 14
35 Floating policy by ship or ships 14
36 Construction of terms in policy 14
37 Premium to be arranged 14
Division 6-Double Insurance 16
38 Double insurance 16
Division 7-Warranties 17
39 Nature of warranty 17
40 When breach of warranty excused 17
41 Express warranties 17
42 Warranty of neutrality 18
43 No implied warranty of nationality 18
44 Warranty of good safety 18
45 Warranty of seaworthiness of ship 18
46 No implied warranty that goods are seaworthy 19
47 Warranty of legality 19
Division 8-The Voyage 20
48 Implied condition as to commencement of risk 20
49 Alteration of port of departure 20
50 Sailing for different destination 20
51 Change of voyage 20
52 Deviation 21
53 Several ports of discharge 21
54 Delay in voyage 21
55 Excuses for deviation or delay 22
Part III-Assignment of Policy 23
56 When and how policy is assignable 23
57 Assured who has no interest cannot assign 23
Part IV-The Premium 24
58 When premium payable 24
Part V-Loss and Abandonment 25
Division 1-General 25
61 Included and excluded losses 25
62 Partial and total loss 25
63 Actual total loss 26
64 Missing ship 26
65 Effect of transhipment etc. 26
66 Constructive total loss defined 26
67 Effect of constructive total loss 27
68 Notice of abandonment 27
69 Effect of abandonment 28
Division 2-Partial Losses (including Salvage, General Average, and
Particular Charges) 29
70 Particular average loss 29
71 Salvage charges 29
72 General average loss 29
Part VI-Measure of Indemnity 31
Division 1-Liability of Insurer for Loss 31
73 Extent of liability of insurer for loss 31
74 Total loss 31
75 Partial loss of ship 31
76 Partial loss of freight 32
77 Partial loss of goods, merchandise etc. 32
78 Apportionment of valuation 33
79 General average contributions and salvage charges 33
80 Liabilities to third parties 34
81 General provisions as to measure of indemnity 34
82 Particular average warranties 34
83 Successive losses 35
84 Suing and labouring clause 35
Division 2-Rights of Insurer on Payment of Loss 36
85 Right of subrogation 36
86 Right of contribution 36
87 Effect of under insurance 36
Part VII-Return of Premium 37
88 Enforcement of return 37
89 Return by agreement 37
90 Return for failure of consideration 37
Part VIII-Mutual Insurance 39
91 Modification of Act in case of mutual insurance 39
Part IX-Supplemental 40
92 Ratification by assured 40
93 Implied obligations varied by agreement or usage 40
94 Reasonable time etc. a question of fact 40
95 Reference to slip or cover note 40
Schedules-The First Schedule 41
The Second Schedule 43
Notes 49
An Act relating to Marine Insurance
Part I-Preliminary
1 Short title and commencement [see Note 1]
This Act may be cited as the Marine Insurance Act 1909 and
shall commence on a day to be fixed by proclamation.
3 Interpretation
In this Act, unless the contrary intention appears.
Action includes counterclaim and set-off.
Freight includes the profit derivable by a ship-owner from the
employment of his or her ship to carry his or her own goods or
movables, as well as freight payable by a third party, but does not
include passage money.
Movables means any movable tangible property, other than the ship,
and includes money, valuable securities, and other documents.
Policy means a marine policy.
4 Saving of rules of common law
The rules of the common law, including the law merchant, save
in so far as they are inconsistent with the express provisions of
this Act, shall apply to contracts of marine insurance.
5 Application of certain Imperial and State Acts
The Imperial Acts and State Acts set out in the First Schedule
shall not to the extent therein specified apply to any contract or
policy of marine insurance to which this Act applies.
6 Application of Act
(1) This Act shall apply to marine insurance other than State
marine insurance and to State marine insurance extending beyond the
limits of the State concerned.
(2) This Act does not apply to contracts of marine insurance made
before the commencement of this Act.
Part II-Marine Insurance
Division 1-Limits of Marine Insurance
7 Marine insurance defined
A contract of marine insurance is a contract whereby the
insurer undertakes to indemnify the assured, in manner and to the
extent thereby agreed, against marine losses, that is to say, the
losses incident to marine adventure.
8 Mixed sea and land risks
(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 analogous to a marine adventure, is covered by a
policy in the form of a marine policy, the provisions of this Act,
in so far as applicable, shall apply thereto; but, except as 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.
9 Marine adventure and maritime perils defined
(1) Subject to the provisions of this Act, every lawful marine
adventure may be the subject of a contract of marine insurance.
(2) In particular there is a marine adventure where:
(a) any ship, goods, or other movables are exposed to maritime
perils. Such property is in this Act referred 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.
Maritime perils means the perils consequent on, or incidental to,
the navigation of the sea, that is to say, perils of the seas,
fire, war perils, pirates, rovers, thieves, captures, seizures,
restraints, and detainments of princes and peoples, jettisons,
barratry, and any other perils, either of the like kind, or which
may be designated by the policy.
Division 2-Insurable Interest
10 Avoidance of wagering or gaming contracts
(1) Every contract of marine insurance by way of gaming or wagering
is void.
(2) A contract of marine insurance is deemed to be a gaming or
wagering contract:
(a) where the assured has not an insurable interest as defined by
this Act, and the contract is entered into with no expectation
of acquiring such an interest; or
(b) where the policy is made interest or no interest, or without
further proof of interest than the policy itself, or without
benefit of salvage to the insurer, or subject to any other like
term:
Provided that, where there is no possibility of salvage, a policy
may be effected without benefit of salvage to the insurer.
11 Insurable interest defined
(1) Subject to the provisions of this Act, every person has an
insurable interest who is interested in a marine adventure.
(2) In particular, a person is interested in a marine adventure
where he or she stands in any legal or equitable relation to the
adventure, or to any insurable property at risk therein, in
consequence of which he or she 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.
12 When interest must attach
(1) The assured must be interested in the subject-matter insured at
the time of the loss, though he or she need not be interested when
the insurance is effected:
Provided that where the subject-matter is insured lost or not
lost, the assured may recover although he or she may not have
acquired his or her interest until after the loss, unless at the
time of effecting the contract of insurance the assured was aware
of the loss, and the insurer was not.
(2) Where the assured has no interest at the time of the loss, he
or she cannot acquire interest by any act or election after he or
she is aware of the loss.
13 Defeasible or contingent interest
(1) A defeasible interest is insurable, as also is a contingent
interest.
(2) In particular, where the buyer of goods has insured them, he or
she has an insurable interest, notwithstanding that he or she
might, at his or her 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.
14 Partial interest
A partial interest of any nature is insurable.
15 Re-insurance
(1) The insurer under a contract of marine insurance has an
insurable interest in his or her risk, and may re-insure in respect
of it.
(2) Unless the policy otherwise provides, the original assured has
no right or interest in respect of such re-insurance.
16 Bottomry
The lender of money on bottomry or respondentia has an
insurable interest in respect of the loan.
17 Master's and seamen's wages
The master or any member of the crew of a ship has an insurable
interest in respect of his or her wages.
18 Advance freight
In the case of advance freight, the person advancing the
freight has an insurable interest, in so far as such freight is not
repayable in case of loss.
19 Charges of insurance
The assured has an insurable interest in the charges of any
insurance which he or she may effect.
20 Quantum of interest
(1) Where the subject-matter insured is mortgaged, the mortgagor
has an insurable interest in the full value thereof, and the
mortgagee has an insurable interest in respect of any sum due or to
become due under the mortgage.
(2) A mortgagee, consignee, or other person having an interest in
the subject-matter insured may insure on behalf and for the benefit
of other persons interested as well as for his or her 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 or her in
case of loss.
21 Assignment of interest
Where the assured assigns or otherwise parts with his or her
interest in the subject-matter insured, he or she does not thereby
transfer to the assignee his or her 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 transmission
of interest by operation of law.
Division 3-Insurable Value
22 Measure of insurable value
Subject to any express provision or valuation in the policy,
the insurable value of the subject-matter insured must be
ascertained as follows:
(a) In insurance on a ship, the insurable value is the value, at
the commencement of the risk, of the ship, including her
outfit, provisions and stores for the officers and crew, money
advanced for seamen's wages, and other disbursements (if any)
incurred to make the ship fit for the voyage or adventure
contemplated by the policy, plus the charges of insurance upon
the whole:
The insurable value, in the case of a steam-ship, includes
also the machinery, boilers, and coals and engine stores if
owned by the assured, and, in the case of a ship engaged in a
special trade, the ordinary fittings requisite for that trade:
(b) In insurance on freight, whether paid in advance or otherwise,
the insurable value is the gross amount of the freight at the
risk of the assured, plus the charges of insurance:
(c) In insurance on goods or merchandise, the insurable value is
the prime cost of the property insured, plus the expenses of
and incidental to shipping and the charges of insurance upon
the whole:
(d) In insurance on any other subject-matter, the insurable value
is the amount at the risk of the assured when the policy
attaches, plus the charges of insurance.
Division 4-Disclosure and Representations
23 Insurance is uberrimae fidei
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.
24 Disclosure by assured
(1) Subject to the provisions of this section, the assured must
disclose to the insurer, before the contract is concluded, every
material circumstance 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 or her. 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 or she will take the risk.
(3) In the absence of inquiry the following circumstances need not
be disclosed, namely:
(a) Any circumstance which diminishes the risk;
(b) Any circumstance which is known or presumed to be known to the
insurer. The insurer is presumed to know matters of common
notoriety or knowledge, and matters which an insurer in the
ordinary course of his or her business, as such, ought to know;
(c) Any circumstance as to which information is waived by the
insurer;
(d) Any circumstance which it is superfluous to disclose by reason
of any express or implied warranty.
(4) Whether any particular circumstance, which is not disclosed, be
material or not is, in each case, a question of fact.
(5) The term circumstance includes any communication made to, or
information received by, the assured.
25 Disclosure by agent effecting insurance
Subject to the provisions of the preceding section as to
circumstances which need not be disclosed, where an insurance is
effected for the assured by an agent, the agent must disclose to
the insurer:
(a) every material circumstance which is known to himself or
herself, 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 or her; and
(b) every material circumstance which the assured is bound to
disclose, unless it come to his or her knowledge too late to
communicate it to the agent.
26 Representations pending negotiation of contract
(1) Every material representation made by the assured or his or her
agent to the insurer during the negotiations 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 or she will take the risk.
(3) A representation may be either 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.
(5) A representation as to a matter of expectation or belief is
true if it be made in good faith.
(6) A representation may be withdrawn or corrected before the
contract is concluded.
(7) Whether a particular representation be material or not is, in
each case, a question of fact.
27 When contract is deemed to be concluded
A contract of marine insurance is deemed to be concluded when
the proposal of the assured is accepted by the insurer, whether the
policy 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.
Division 5-The Policy
28 Contract must be embodied in policy
Subject to the provisions of any Act, a contract of marine
insurance is inadmissible in evidence in an action for the recovery
of a loss under the contract 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.
29 What policy must specify
A marine policy must specify:
(a) the name of the assured, or of some person who effects the
insurance on his or her behalf:
(b) the subject-matter insured and the risk insured against:
(c) the voyage, or period of time, or both, as the case may be,
covered by the insurance:
(d) the sum or sums insured:
(e) the name or names of the insurers.
30 Signature of insurer
(1) A marine policy must be signed by or on behalf of the insurer,
provided that in the case of a corporation the corporate seal may
be sufficient, but nothing in this section shall be construed as
requiring the subscription of a corporation to be under seal.
(2) Where a policy is subscribed by or on behalf of two or more
insurers, each subscription, unless the contrary be expressed,
constitutes a distinct contract with the assured.
31 Voyage and time policies
(1) Where the contract is to insure the subject-matter at and from,
or from one place to another place or to other places, the policy
is called a voyage policy, and where the contract is to insure the
subject-matter for a definite period of time the policy is called a
time policy. A contract for both voyage and time may be included in
the same policy.
(2) A time policy which is made for any time exceeding twelve
months is invalid. 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.
32 Designation of subject-matter
(1) The subject-matter insured must be designated in a marine
policy with reasonable certainty.
(2) The nature and extent of the interest of the assured in the
subject-matter insured need not be specified in the policy.
(3) Where the policy designates the subject-matter insured in
general terms, it shall be construed to apply to the interest
intended by the assured to be covered.
(4) In the application of this section regard shall be had to any
usage regulating the designation of the subject-matter insured.
33 Valued policy
(1) A policy may be either valued or unvalued.
(2) A valued policy is a policy which specifies the agreed value of
the subject-matter insured.
(3) Subject to the provisions of this Act, and in the absence of
fraud, the value fixed by the policy is, as between the insurer and
assured, conclusive of the insurable value of the subject intended
to be insured, whether the loss 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.
34 Unvalued policy
An unvalued policy is a policy which does not specify the value
of the subject-matter insured, but, subject to the limit of the sum
insured, leaves the insurable value to be subsequently ascertained,
in the manner hereinbefore specified.
35 Floating policy by ship or ships
(1) A floating policy is a policy which describes the insurance in
general terms, and leaves the name of the ship or ships and other
particulars to be defined by subsequent declaration.
(2) The subsequent declaration or declarations may be made by
indorsement on the policy, or in other customary manner.
(3) Unless the policy otherwise provides, the declarations must be
made in the order of despatch or shipment. They must, in the case
of goods, comprise all consignments within the terms of the policy,
and the value of the goods or other property must be honestly
stated, but an omission or erroneous declaration may be rectified
even after loss or arrival, provided the omission or declaration
was made in good faith.
(4) Unless the policy otherwise provides, where a declaration of
value is not made until after notice of loss or arrival, the policy
must be treated as an unvalued policy as regards the subject-matter
of that declaration.
36 Construction of terms in policy
(1) A policy may be in the form in the Second Schedule.
(2) Subject to the provisions of this Act, and unless the context
of the policy otherwise requires, the terms and expressions
mentioned in the Second Schedule shall be construed as having the
scope and meaning in that Schedule assigned to them.
37 Premium to be arranged
(1) Where an insurance is effected at a premium to be arranged, and
no arrangement is made, a reasonable premium is payable.
(2) Where an insurance is effected on the terms that an additional
premium is to be arranged in a given event, and that event happens
but no arrangement is made, then a reasonable additional premium is
payable.
Division 6-Double Insurance
38 Double insurance
(1) Where two or more policies are effected by or on behalf of the
assured on the same adventure and interest or any part thereof, and
the sums insured exceed the indemnity allowed by this Act, the
assured is said to be over-insured by the 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 or she may think
fit, provided that he or she is not entitled to receive any sum
in excess of the indemnity allowed by this Act;
(b) where the policy under which the assured claims is a valued
policy, the assured must give credit, as against the valuation,
for any sum received by him or her under any other policy,
without regard to the actual value of the subject-matter
insured;
(c) where the policy under which the assured claims is an unvalued
policy, he or she must give credit, as against the full
insurable value, for any sum received by him or her under any
other policy;
(d) where the assured receives any sum in excess of the indemnity
allowed by this Act, he or she is deemed to hold such sum in
trust for the insurers, according to their right of
contribution among themselves.
Division 7-Warranties
39 Nature of warranty
(1) A warranty, in the following sections relating to warranties,
means a promissory warranty, that is to say a warranty by which the
assured undertakes that some particular thing shall or shall not be
done, or that some conditions shall be fulfilled, or whereby he or
she 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 discharged from liability
as from the date of the breach of warranty, but without prejudice
to any liability incurred by him or her before that date.
40 When breach of warranty excused
(1) Non-compliance with a warranty is excused when, by reason of a
change of circumstances, the warranty ceases to be applicable to
the circumstances of the contract, or when compliance with the
warranty is rendered unlawful by any subsequent law.
(2) Where a warranty is broken, the assured cannot avail himself or
herself 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.
41 Express warranties
(1) An express warranty may be in any form of words from which the
intention to warrant is to be inferred.
(2) An express warranty must be included in, or written upon, the
policy, or must be contained in some document incorporated by
reference into the policy.
(3) An express warranty does not exclude an implied warranty,
unless it be inconsistent therewith.
42 Warranty of neutrality
(1) Where insurable property, whether ship or goods, is expressly
warranted neutral, there is an implied condition that the property
shall have a neutral character at the commencement of the risk, and
that, so far as the assured can control the matter, its neutral
character shall be preserved during the risk.
(2) Where a ship is expressly warranted neutral there is also an
implied condition that, so far as the assured can control the
matter, 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.
43 No implied warranty of nationality
There is no implied warranty as to the nationality of a ship,
or that her nationality shall not be changed during the risk.
44 Warranty of good safety
Where the subject-matter insured is warranted well or in good
safety on a particular day, it is sufficient if it be safe at any
time during that day.
45 Warranty of seaworthiness of ship
(1) In a voyage policy there is an implied warranty that at the
commencement of the voyage the ship shall be seaworthy for the
purpose of the particular adventure insured.
(2) Where the policy attaches while the ship is in port, there is
also an implied warranty that she shall, at the commencement of the
risk, be reasonably fit to encounter the ordinary perils of the
port.
(3) Where the policy relates to a voyage which is performed in
different stages, during which the ship requires different kinds of
or further preparation or equipment, there is an implied warranty
that at the commencement of each stage the ship is seaworthy in
respect of such preparation or equipment for the purposes of that
stage.
(4) A ship is deemed to be seaworthy when she is reasonably fit in
all respects to encounter the ordinary perils of the seas of the
adventure insured.
(5) In a time policy there is no implied warranty that the ship
shall be seaworthy at any stage of the adventure, but where, with
the privity of the assured, the ship is sent to sea in an
unseaworthy state, the insurer is not liable for any loss
attributable to unseaworthiness.
46 No implied warranty that goods are seaworthy
(1) In a policy on goods or other movables there is no implied
warranty that the goods or movables are seaworthy.
(2) In a voyage policy on goods or other movables there is an
implied warranty that at the commencement of the voyage the ship is
not only seaworthy as a ship, but also that she is reasonably fit
to carry the goods or other movables to the destination
contemplated by the policy.
47 Warranty of legality
There is an implied warranty that the adventure insured is a
lawful one, and that, so far as the assured can control the matter,
the adventure shall be carried out in a lawful manner.
Division 8-The Voyage
48 Implied condition as to commencement of risk
(1) Where the subject-matter is insured by a voyage policy at and
from or from a particular place, it is not necessary that the ship
should be at that place when the contract is concluded, but there
is an implied condition that the adventure shall be commenced
within a reasonable time, and that if the adventure 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 or she waived the
condition.
49 Alteration of port of departure
Where the place of departure is specified by the policy, and
the ship instead of sailing from that place sails from any other
place, the risk does not attach.
50 Sailing for different destination
Where the destination is specified in the policy, and the ship,
instead of sailing for that destination, sails for any other
destination, the risk does not attach.
51 Change of voyage
(1) Where, after the commencement of the risk, the destination of
the ship is voluntarily changed from the destination contemplated
by the policy, there is said to be a change of voyage.
(2) Unless the policy otherwise provides, where there is a change
of voyage, the insurer is discharged from liability as from the
time of change, that is to say, as from the time when the
determination to change it is manifested; and it is immaterial that
the ship may not in fact have left the course of voyage
contemplated by the policy when the loss occurs.
52 Deviation
(1) Where a ship, without lawful excuse, deviates from the voyage
contemplated by the policy, the insurer is discharged from
liability as from the time of deviation, and it is immaterial that
the ship may have regained her route before any loss occurs.
(2) There is a deviation from the voyage contemplated by the
policy:
(a) where the course of the voyage is specifically designated by
the policy, and that course is departed from; or
(b) where the course of the voyage is not specifically designated
by the policy, but the usual and customary course is departed
from.
(3) The intention to deviate is immaterial; there must be a
deviation in fact to discharge the insurer from his or her
liability under the contract.
53 Several ports of discharge
(1) Where several ports of discharge are specified by the policy,
the ship may proceed to all or any of them, but, in the absence of
any usage or sufficient cause to the contrary, she must proceed to
them, or such of them as she goes to, in the order designated by
the policy. If she does not there is a deviation.
(2) Where the policy is to ports of discharge, within a given area,
which are not named, the ship must, in the absence of any usage or
sufficient cause to the contrary, proceed to them, or such of them
as she goes to, in their geographical order. If she does not there
is a deviation.
54 Delay in voyage
In the case of a voyage policy, the adventure insured must be
prosecuted throughout its course with reasonable despatch, and, if
without lawful excuse it is not so prosecuted, the insurer is
discharged from liability as from the time when the delay became
unreasonable.
55 Excuses for deviation or delay
(1) Deviation or delay in prosecuting the voyage 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 or her employer; or
(c) where reasonably necessary in order to comply with an express
or implied warranty; or
(d) where reasonably necessary for the safety of the ship or
subject-matter insured; or
(e) for the purpose of saving human life, or aiding a ship in
distress where human life may be in danger; or
(f) where reasonably necessary for the purpose of obtaining medical
or surgical aid for any person on board the ship; or
(g) where caused by the barratrous conduct of the master or crew,
if barratry 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 prosecute her voyage,
with reasonable despatch.
Part III-Assignment of Policy
56 When and how policy is assignable
(1) A marine policy is assignable unless it contains terms
expressly prohibiting assignment. It may be assigned either before
or after loss.
(2) Where a marine policy has been assigned so as to pass the
beneficial interest in the policy, the assignee of the policy is
entitled to sue thereon in his or her own name; and the defendant
is entitled to make any defence arising out of the contract which
he or she would have been entitled to make if the action had been
brought in the name of the person by or on behalf of whom the
policy was effected.
(3) A marine policy may be assigned by indorsement thereon or in
other customary manner.
57 Assured who has no interest cannot assign
Where the assured has parted with or lost his or her interest
in the subject-matter insured, and has not, before or at the time
of so doing, expressly or impliedly agreed to assign the policy,
any subsequent assignment of the policy is inoperative:
Provided that nothing in this section affects the assignment of a
policy after loss.
Part IV-The Premium
58 When premium payable
Unless otherwise agreed, the duty of the assured or his or her
agent to pay the premium, and the duty of the insurer to issue the
policy to the assured or his or her agent, are concurrent
conditions, and the insurer is not bound to issue the policy until
payment or tender of the premium.
Part V-Loss and Abandonment
Division 1-General
61 Included and excluded losses
(1) Subject to the provisions of this Act, and unless the policy
otherwise provides, the insurer is liable for any loss proximately
caused by a peril insured against, but, subject as aforesaid, he or
she is not liable for any loss which is not proximately caused by a
peril insured against.
(2) In particular:
(a) the insurer is not liable for any loss attributable to the
wilful misconduct of the assured, but, unless the policy
otherwise provides, he or she 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 proximately caused by rats or vermin, or for any
injury to machinery not proximately caused by maritime perils.
62 Partial and total loss
(1) A loss may be either total or partial. Any loss other than a
total loss, as hereinafter defined, is a partial loss.
(2) A total loss may be either an actual total loss, or a
constructive total loss.
(3) Unless a different intention appears from the terms of 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 or she 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.
63 Actual total loss
(1) Where the subject-matter insured is destroyed, or so damaged as
to cease to be a thing of the kind insured, or where the assured is
irretrievably deprived thereof, there is an actual total loss.
(2) In the case of an actual total loss no notice of abandonment
need be given.
64 Missing ship
Where the ship concerned in the adventure is missing, and after
the lapse of a reasonable time no news of her has been received, an
actual total loss may be presumed.
65 Effect of transhipment etc.
Where, by a peril insured against, the voyage is interrupted at
an intermediate port or place, under such circumstances as, apart
from any special stipulation in the contract of affreightment, to
justify the master in landing and re-shipping the goods or other
movables, or in transhipping them, and sending them on to their
destination, the liability of the insurer continues,
notwithstanding the landing or transhipment.
66 Constructive total loss defined
(1) Subject to any express provision in the policy, there is a
constructive total loss where the subject-matter insured is
reasonably abandoned on account of its actual total loss appearing
to be unavoidable, or because it could not be preserved from actual
total loss without an expenditure which would exceed its value when
the expenditure had been incurred.
(2) In particular, there is a constructive total loss:
(a) where the assured is deprived of the possession of his or her
ship or goods by a peril insured against, and
(i) it is unlikely that he or she 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 contribution 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.
67 Effect of constructive total loss
Where there is a constructive total loss, the assured may
either treat the loss as a partial loss, or abandon the subject-
matter insured to the insurer and treat the loss as if it were an
actual total loss.
68 Notice of abandonment
(1) Subject to the provisions of this section, where the assured
elects to abandon the subject-matter insured to the insurer, he or
she must give notice of abandonment. If he or she fails to do so
the loss can only be treated as a partial loss.
(2) Notice of abandonment may be given in writing, or by word of
mouth, or partly in writing and partly by word of mouth, and may be
given in any terms which indicate the intention of the assured to
abandon his or her insured interest in the subject-matter insured
unconditionally to the insurer.
(3) Notice of abandonment must be given with reasonable diligence
after the receipt of reliable information of the loss, but where
the information is of a doubtful character the assured is entitled
to a reasonable time to make inquiry.
(4) Where notice of abandonment is properly given, the rights of
the assured are not prejudiced by the fact that the insurer refuses
to accept the abandonment.
(5) The acceptance of an abandonment may be either express or
implied from the conduct of the insurer. The mere silence of the
insurer after notice is not an acceptance.
(6) Where notice of abandonment is accepted the abandonment is
irrevocable. The acceptance of the notice conclusively admits
liability for the loss and the sufficiency of the notice.
(7) Notice of abandonment is unnecessary where, at the time when
the assured receives information of the loss, there would be no
possibility of benefit to the insurer if notice were given to him
or her.
(8) Notice of abandonment may be waived by the insurer.
(9) Where an insurer has re-insured his or her risk, no notice of
abandonment need be given by him or her.
69 Effect of abandonment
(1) Where there is a valid abandonment the insurer is entitled to
take over the interest of the assured in whatever may remain of the
subject-matter insured, and all proprietary rights incidental
thereto.
(2) Upon the abandonment of a ship, the insurer thereof is entitled
to any freight 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.
Division 2-Partial Losses (including Salvage, General Average, and
Particular Charges)
70 Particular average loss
(1) A particular average loss is a partial loss of the subject-
matter insured, caused by a peril insured against, and which is not
a general average loss.
(2) Expenses incurred by or on behalf of the assured for the safety
or preservation of the subject-matter insured, other than general
average and salvage charges, are called particular charges.
Particular charges are not included in particular average.
71 Salvage charges
(1) Subject to any express provision in the policy, salvage charges
incurred in preventing a loss by perils insured against may be
recovered as a loss by those perils.
(2) Salvage charges means the charges recoverable under maritime
law by a salvor independently of contract. They do not include the
expenses of services in the nature of salvage rendered by the
assured or his or her 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.
72 General average loss
(1) A general average loss is a loss caused by or directly
consequential on a general average act. It includes a general
average expenditure as well as a general average sacrifice.
(2) There is a general average act where any extraordinary
sacrifice or expenditure is voluntarily and reasonably made or
incurred in time of peril for the purpose of preserving the
property imperilled in the common adventure.
(3) Where there is a general average loss, the party on whom it
falls is entitled, subject to the conditions imposed by maritime
law, to a rateable contribution from the other parties interested,
and such contribution is called a general average contribution.
(4) Subject to any express provision in the policy, where the
assured has incurred a general average expenditure, he or she may
recover from the insurer in respect of the proportion of the loss
which falls upon him or her; and, in the case of a general average
sacrifice, he or she may recover from the insurer in respect of the
whole loss without having enforced his or her 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 or she 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 connexion with
the avoidance of, a peril insured against.
(7) Where ship, freight, and cargo, or any two of those interests,
are owned by the same assured, the liability of the insurer in
respect of general average losses or contributions is to be
determined as if those subjects were owned by different persons.
Part VI-Measure of Indemnity
Division 1-Liability of Insurer for Loss
73 Extent of liability of insurer for loss
(1) The sum which the assured can recover in respect of a loss on a
policy by which he or she is insured, in the case of an unvalued
policy to the full extent of the insurable value, or, in the case
of a valued policy to the full extent of the value fixed by the
policy, is called the measure of indemnity.
(2) Where there is a loss recoverable under the policy, the
insurer, or each insurer if there be more than one, is liable for
such proportion of the measure of indemnity as the amount of his or
her 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.
74 Total loss
Subject to the provisions of this Act and to any express
provision in the policy, where there is a total loss of the subject-
matter insured:
(a) if the policy 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.
75 Partial loss of ship
Where a ship is damaged, but is not totally lost, the measure
of indemnity, subject to any express provision in the policy, is as
follows:
(a) Where the ship has been repaired, the assured is entitled to
the reasonable cost of the repairs, less the customary
deductions, but not exceeding the sum insured in respect of any
one casualty:
(b) Where the ship has been only partially repaired, the assured is
entitled to the reasonable cost of such repairs, computed as
above, and also to be indemnified for the reasonable
depreciation, if any, arising from the unrepaired damage,
provided that the aggregate amount shall not exceed the cost of
repairing the whole damage, computed as above:
(c) Where the ship has not been repaired, and has not been sold in
her damaged state during the risk, the assured is entitled to
be indemnified for the reasonable depreciation arising from the
unrepaired damage, but not exceeding the reasonable cost of
repairing such damage, computed as above.
76 Partial loss of freight
Subject to any express provision in the policy, where there is
a partial loss of freight, the measure of indemnity is such
proportion of the sum fixed by the policy in the case of a valued
policy, or of the insurable value in the case of an unvalued
policy, as the proportion of freight lost by the assured bears to
the whole freight at the risk of the assured under the policy.
77 Partial loss of goods, merchandise etc.
Where there is a partial loss of goods, merchandise, or other
movables, the measure of indemnity, subject to any express
provision in the policy, is as follows:
(a) Where part of the goods, merchandise, or other movables insured
by a valued policy is totally lost, the measure of indemnity is
such proportion of the sum fixed by the policy as the insurable
value of the part lost bears to the insurable value of the
whole, ascertained as in the case of an unvalued policy;
(b) Where part of the goods, merchandise, or other movables insured
by an unvalued policy is totally lost, the measure of indemnity
is the insurable value of the part lost, ascertained as in case
of total loss;
(c) Where the whole or any part of the goods or merchandise insured
has been delivered damaged at its destination, the measure of
indemnity is such proportion of the sum fixed by the policy in
the case of a valued policy, or of the insurable value in the
case of an unvalued policy, as the difference between the gross
sound and damaged values at the place of arrival bears to the
gross sound value.
(d) Gross value means the wholesale price or, if there 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 merchandise customarily sold in bond, the
bonded price is deemed to be the gross value.
Gross proceeds means the actual price obtained at a sale where
all charges on sale are paid by the sellers.
78 Apportionment of valuation
(1) Where different species of property are insured under a single
valuation, the valuation must be apportioned over the different
species in proportion to their respective insurable values, as in
the case of an unvalued policy. The insured value of any part of a
species is such proportion of the total insured value of the
species as the insurable value of the part bears to the insurable
value of the whole, ascertained 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 descriptions of goods.
79 General average contributions and salvage charges
(1) Subject to any express provision in the policy, where the
assured has paid, or is liable for, any general average
contribution, the measure of indemnity is the full amount of such
contribution, if the subject-matter liable to contribution is
insured for its full contributory value; but, if such subject-
matter 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 or her liability must be determined on the like principle.
80 Liabilities to third parties
Where the assured has effected an insurance in express terms
against any liability to a third party, the measure of indemnity,
subject to any express provision in the policy, is the amount paid
or payable by him or her to such third party in respect of such
liability.
81 General provisions as to measure of indemnity
(1) Where there has been a loss in respect of any subject-matter
not expressly provided for in the foregoing provisions of this Act,
the measure of indemnity shall be ascertained, as nearly as may be,
in accordance with those provisions, in so far as applicable to the
particular case.
(2) Nothing in the provisions of this Act relating to the measure
of indemnity shall affect the rules relating to double insurance,
or prohibit the insurer from disproving interest wholly or in part,
or from showing that at the time of the loss the whole or any part
of the subject-matter insured was not at risk under the policy.
82 Particular average warranties
(1) Where the subject-matter insured is warranted free from
particular average, the assured cannot recover for a loss of part,
other than a loss incurred by a general average sacrifice, unless
the contract contained in the policy be apportionable; but, if the
contract be apportionable, the assured may recover for a total loss
of any apportionable part.
(2) Where the subject-matter insured is warranted free from
particular average, either wholly or under a certain percentage,
the insurer is nevertheless liable for salvage charges, and for
particular charges and other expenses properly incurred pursuant to
the provisions of the suing and labouring clause in order to avert
a loss insured against.
(3) Unless the policy otherwise provides, where the subject-matter
insured is warranted free from particular average under a specified
percentage, a general average loss cannot be added to a particular
average loss to make up the specified percentage.
(4) For the purpose of ascertaining whether the specified
percentage has been reached, regard shall be had only to the actual
loss suffered by the subject-matter insured. Particular charges and
the expenses of and incidental to ascertaining and proving the loss
must be excluded.
83 Successive losses
(1) Unless the policy otherwise provides, and subject to the
provisions of this Act, the insurer is liable for successive
losses, even though the total amount of such losses may exceed the
sum insured.
(2) Where, under the same policy, a partial loss, which has not
been repaired or otherwise made good, is followed by a total loss,
the assured can only recover in respect of the total loss:
Provided that nothing in this section shall affect the liability
of the insurer under the suing and labouring clause.
84 Suing and labouring clause
(1) Where the policy contains a suing and labouring clause, the
engagement thereby entered into is deemed to be supplementary to
the contract of insurance, and the assured may recover from the
insurer any expenses properly incurred pursuant to the clause,
notwithstanding that the insurer may have paid for a total loss, or
that the subject-matter may have been warranted free from
particular average, either wholly or under a certain percentage.
(2) General average losses and contributions and salvage charges,
as defined by this Act, are not recoverable under the suing and
labouring clause.
(3) Expenses incurred for the purpose of averting or diminishing
any loss not covered by the policy are not recoverable under the
suing and labouring clause.
(4) It is the duty of the assured and his or her agents, in all
cases, to take such measures as may be reasonable for the purpose
of averting or minimizing a loss.
Division 2-Rights of Insurer on Payment of Loss
85 Right of subrogation
(1) Where the insurer pays for a total loss, either of the whole,
or in the case of goods of any apportionable part, of the subject-
matter insured, he or she thereupon becomes entitled to take over
the interest of the assured in whatever may remain of the subject-
matter so paid for, and he or she 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 or she acquires no title to the subject-matter
insured, or such part of it as may remain, but he or she 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.
86 Right of contribution
(1) Where the assured is over-insured by double insurance, each
insurer is bound, as between himself or herself and the other
insurers, to contribute rateably to the loss in proportion to the
amount for which he or she is liable under his or her contract.
(2) If any insurer pays more than his or her proportion of the
loss, he or she is entitled to maintain an action for contribution
against the other insurers, and is entitled to the like remedies as
a surety who has paid more than his or her proportion of the debt.
87 Effect of under insurance
Where the assured is insured for an amount less than the
insurable value, or, in the case of a valued policy, for an amount
less than the policy valuation, he or she is deemed to be his or
her own insurer in respect of the uninsured balance.
Part VII-Return of Premium
88 Enforcement of return
Where the premium, or a proportionate part thereof, is, by this
Act, declared to be returnable:
(a) if already paid, it may be recovered by the assured from the
insurer; and
(b) if unpaid, it may be retained by the assured or his or her
agent.
89 Return by agreement
Where the policy contains a stipulation for the return of the
premium, or a proportionate part thereof, on the happening of a
certain event, and that event happens, the premium, or, as the case
may be, the proportionate part thereof, is thereupon returnable to
the assured.
90 Return for failure of consideration
(1) Where the consideration for the payment of the premium totally
fails, and there has been no fraud or illegality on the part of the
assured or his or her agents, the premium is thereupon returnable
to the assured.
(2) Where the consideration for the payment of the premium is
apportionable, and there is a total failure of any apportionable
part of the consideration, a proportionate part of the premium is,
under the like conditions, thereupon returnable to the assured.
(3) In particular:
(a) where the policy is void, or is avoided by the insurer as from
the commencement of the risk, the premium is returnable,
provided that there has been no fraud or illegality on the part
of the assured; but if the risk is not apportionable, and has
once attached, the premium is not returnable;
(b) where the subject-matter insured, or part thereof, has never
been imperilled, the premium, or, as the case may be, a
proportionate part thereof, is returnable:
Provided that where the subject-matter has been insured lost
or not lost and has arrived in safety at the time when the
contract is concluded, the premium is not returnable unless, at
such time, the insurer knew of the safe arrival;
(c) where the assured has no insurable interest throughout the
currency of the risk, the premium is returnable, provided that
this rule does not apply to a policy effected by way of gaming
or wagering;
(d) where the assured has a defeasible interest which is terminated
during the currency of the risk, the premium is not returnable;
(e) where the assured has over-insured under an unvalued policy, a
proportionate part of the premium is returnable;
(f) 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 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.
Part VIII-Mutual Insurance
91 Modification of Act in case of mutual insurance
(1) Where two or more persons mutually agree to insure each other
against marine losses there is said to be a mutual insurance.
(2) The provisions of this Act relating to the premium do not apply
to mutual insurance, but a guarantee, or such other arrangement as
may be agreed upon, may be substituted for the premium.
(3) The provisions of this Act, in so far as they may be modified
by the agreement of the parties, may in the case of mutual
insurance be modified by the terms of the policies issued by the
association, or by the rules and regulations of the association.
(4) Subject to the exceptions mentioned in this section, the
provisions of this Act apply to a mutual insurance.
Part IX-Supplemental
92 Ratification by assured
Where a contract of marine insurance is in good faith effected
by one person on behalf of another, the person on whose behalf it
is effected may ratify the contract even after he or she is aware
of a loss.
93 Implied obligations varied by agreement or usage
(1) Where any right, duty, or liability would arise under a
contract of marine insurance by implication of law, it may be
negatived or varied by express agreement, or by usage, if the usage
be such as to bind both parties to the contract.
(2) The provisions of this section extend to any right, duty, or
liability declared by this Act which may be lawfully modified by
agreement.
94 Reasonable time etc. a question of fact
Where by this Act any reference is made to reasonable time,
reasonable premium, or reasonable diligence, the question what is
reasonable is a question of fact.
95 Reference to slip or cover note
Where a policy in accordance with this Act has been issued
nothing in this Act shall prevent reference being made in legal
proceedings to the slip or covering note or other customary
memorandum of a contract of marine insurance.
Schedules-The First Schedule
Section 5
IMPERIAL ACTS
|Session and | | |
|Chapter |Title or Short Title |Extent |
| | | |
|19 Geo. 2, |An Act to regulate insurance on|The whole. |
|ch. 37 |ships belonging to the subjects| |
| |of Great Britain, and on | |
| |merchandises or effects laden | |
| |thereon. | |
|28 Geo. 3, |An Act to repeal an Act made in|The whole so |
|ch. 56 |the twenty-fifth year of the |far as it |
| |reign of His present Majesty, |relates to |
| |intituled "An Act for |Marine |
| |regulating insurance on ships, |Insurance. |
| |and on goods, merchandises, or | |
| |effects," and for substituting | |
| |other provisions for the like | |
| |purpose in lieu thereof. | |
STATE ACTS
|Short Title and Number |State |Extent |
|Life, Fire, and Marine |New South Wales |Section 17. |
|Insurance Act, 1902, | | |
|No. 49. | | |
|The Instruments Act.1890, |Victoria |Part III, |
|No. 1103 | |Division 1. |
|Prohibition to |South Australia |The whole. |
|Re-Assurances Repeal Act | | |
|1867, No. 4. | | |
|The Marine Insurance Act |Western |The whole. |
|1907, No. 33 |Australia | |
|The Policies of Marine |Tasmania |The whole. |
|Assurance Act 1869, No. 10.| | |
The Second Schedule
Section 36
FORM OF POLICY
Lloyd's S.G. policy
BE IT KNOWN THAT as well in own name as for and in the name and names
of all and every other person or 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
said 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, &c.
and so shall continue and endure, during her abode there, upon the said
ship, &c.,
and further, until the said ship, with all her ordnance, tackle, apparel,
&c.,
and goods and merchandises whatsoever shall be arrived at
upon the said ship, &c., until she hath moored at anchor twenty-four hours
in good safety; and upon the goods and merchandises, until the same be
there discharged and safely landed. And it shall be lawful for the said
ship, &c., in this voyage, to proceed and sail to and touch and stay at any
ports or places whatsoever
without prejudice to this insurance. The said ship, &c., goods and
merchandises, &c., 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, &c., or
any part thereof. (a) And in the case of any loss or misfortune it shall be
lawful to the assured, their factors, servants and assigns, to sue, labour,
and travel for, in and about the defence, safeguards, and recovery of the
said goods and merchandises, and ship, &c., 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. (b) 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, administrators, 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.
[Memorandum.]
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 per
centum, and all other goods also the ship and freight, are warranted free
from average, under three per centum unless general, or the ship be
stranded.
RULES FOR CONSTRUCTION OF POLICY
The following are the rules referred to by this Act for the construction
of a policy in the above or other like form, where the context does not
otherwise require:
Lost or not lost
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.
From
2. Where the subject-matter is insured "from" a particular place, the
risk does not attach until the ship starts on the voyage insured.
At and from
[Ship.]
3. (a) Where a ship is insured "at and from" a particular place, and
she is at that place in good safety when the contract is concluded,
the risk attaches immediately.
(b) If she 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.
[Freight.]
(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 rata as the goods or merchandise are shipped;
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.
From the loading thereof
4. Where goods or other movables are insured "from the loading thereof,"
the risk does not attach until such goods or movables are actually on
board, and the insurer is not liable for them while in transit from the
shore to the ship.
Safely landed
5. Where the risk on goods or other movables continues until they are
"safely landed," they must be landed in the customary manner and within a
reasonable time after arrival at the port of discharge, and if they are not
so landed the risk ceases.
Touch and stay
6. In the absence of any further licence or usage, the liberty to touch
and stay "at any port or place whatsoever" does not authorize the ship to
depart from the course of her voyage from the port of departure to the port
of destination.
Perils of the seas
7. The term "perils of the seas" refers only to fortuitous accidents or
casualties of the seas. It does not include the ordinary action of the
winds and waves.
Pirates
8. The term "pirates" includes passengers who mutiny and rioters who
attack the ship from the shore.
Thieves
9. The term "thieves" does not cover clandestine theft or a theft
committed by any one of the ship's company, whether crew or passengers.
Restraint of princes
10. The term "arrest, &c., of kings, princes, and people" refers to
political or executive acts, and does not include a loss caused by riot or
by ordinary judicial process.
Barratry
11. The term "barratry" includes every wrongful act wilfully committed by
the master or crew to the prejudice of the owner, or, as the case may be,
the charterer.
All other perils
12. The term "all other perils" includes only perils similar in kind to
the perils specifically mentioned in the policy.
Average unless general
13. The term "average unless general" means a partial loss of the subject-
matter insured other than a general average loss, and does not include
"particular charges."
Stranded
14. Where the ship has stranded, the insurer is liable for the excepted
losses, although the loss is not attributable to the stranding, provided
that when the stranding takes place the risk has attached and, if the
policy be on goods, that the damaged goods are on board.
Ship
15. The term "ship" includes the hull, materials and outfit, stores and
provisions for the officers and crew, and, in the case of vessels engaged
in a special trade, the ordinary fittings requisite for the trade, and
also, in the case of a steam-ship, the machinery, boilers, and coals and
engine stores, if owned by the assured.
Freight
16. The term "freight" includes the profit derivable by a ship-owner from
the employment of his ship to carry his own goods or movables, as well as
freight payable by a third party, but does not include passage money.
Goods
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
denomination of goods.
Notes to the Marine Insurance Act 1909
Note 1
The Marine Insurance Act 1909 as shown in this compilation comprises Act
No. 11, 1909 amended as indicated in the Tables below.
Table of Acts
|Act |Number |Date |Date of |Applica|
| |and year|of Assent|commencemen|tion, |
| | | |t |saving |
| | | | |or |
| | | | |transit|
| | | | |ional |
| | | | |provisi|
| | | | |ons |
|Marine Insurance|11, 1909|11 Nov |1 July 1910| |
|Act 1909 | |1909 |(see | |
| | | |Gazette | |
| | | |1910, p. | |
| | | |993) | |
|Statute Law |93, 1966|29 Oct |1 Dec 1966 |- |
|Revision | |1966 | | |
|(Decimal | | | | |
|Currency) Act | | | | |
|1966 | | | | |
|Statute Law |216, |19 Dec |31 Dec 1973|Ss. |
|Revision Act |1973 |1973 | |9(1) |
|1973 | | | |and 10 |
|Financial |123, |27 Sept |Schedule 1 |- |
|Services Reform |2001 |2001 |(item 259):| |
|(Consequential | | |11 Mar 2002| |
|Provisions) Act | | |(see | |
|2001 | | |Gazette | |
| | | |2001, No. | |
| | | |GN42) (a) | |
|Statute Law |73, 2008|3 July |Schedule 4 |- |
|Revision Act | |2008 |(items 386-| |
|2008 | | |389): | |
| | | |4 July 2008| |
(a) The Marine Insurance Act 1909 was amended by Schedule 1 (item 259)
only of the Financial Services Reform (Consequential Provisions) Act
2001, subsections 2(1) and (6) of which provide as follows:
(1) In this section:
FSR commencement means the commencement of item 1 of Schedule 1
to the Financial Services Reform Act 2001.
(6) Subject to subsections (7) to (17), the other items of
Schedule 1 commence on the FSR commencement.
Table of Amendments
|ad. = added or inserted am. = amended rep. = |
|repealed rs. = repealed and substituted |
|Provision affected|How affected |
|Part I | |
|S. 2 |rep. No. 216, 1973 |
|S. 3 |am. No. 73, 2008 |
|Part II | |
|Division 2 | |
|Ss. 11-13 |am. No. 73, 2008 |
|S. 15 |am. No. 73, 2008 |
|S. 17 |am. No. 73, 2008 |
|Ss. 19-21 |am. No. 73, 2008 |
|Division 4 | |
|Ss. 24-26 |am. No. 73, 2008 |
|Division 5 | |
|S. 29 |am. No. 73, 2008 |
|Division 6 | |
|S. 38 |am. No. 73, 2008 |
|Division 7 | |
|Ss. 39, 40 |am. No. 73, 2008 |
|Division 8 | |
|S. 48 |am. No. 73, 2008 |
|S. 52 |am. No. 73, 2008 |
|S. 55 |am. No. 73, 2008 |
|Part III | |
|Ss. 56, 57 |am. No. 73, 2008 |
|Part IV | |
|S. 58 |am. No. 73, 2008 |
|Ss. 59, 60 |rep. No. 123, 2001 |
|Part V | |
|Division 1 | |
|Ss. 61, 62 |am. No. 73, 2008 |
|S. 66 |am. No. 73, 2008 |
|S. 68 |am. No. 73, 2008 |
|Division 2 | |
|Ss. 71, 72 |am. No. 73, 2008 |
|Part VI | |
|Division 1 | |
|S. 73 |am. No. 73, 2008 |
|Ss. 79, 80 |am. No. 73, 2008 |
|S. 84 |am. No. 73, 2008 |
|Division 2 | |
|Ss. 85-87 |am. No. 73, 2008 |
|Part VII | |
|S. 88 |am. No. 73, 2008 |
|S. 90 |am. No. 73, 2008 |
|Part IX | |
|S. 92 |am. No. 73, 2008 |
|Schedules | |
|The Second |am. No. 93, 1966 |
|Schedule | |
(a) [Sue and labour clause.]
(b) [Waiver clause.]
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