International Cargo Insurance examines the law and practice of marine cargo insurance on a worldwide basis, and provides the busy practitioner the information needed to quickly and accurately resolve cargo insurance coverage issues, wherever they may arise.
The book concentrates on the law in the United States and England. It then examines other countries with a common law tradition including Hong Kong, Singapore, Japan and Australia. The civil law systems are highlighted in a number of key trading nations: Italy, Germany, France and Norway. The book includes chapters on South Africa as well as the People’s Republic of China. It concludes with a comparative law chapter concentrating on issues that arise in practice in cargo coverage cases. This chapter also examines how the Institute Cargo Clauses have been construed by Courts worldwide.
The appendices include the standard cargo policy insurance terms used in each jurisdiction, some translated for the first time for this volume, as well as translations of the relevant statutes and commercial codes, many not available elsewhere.
Table of Contents
1. History and Harmonisation, John Dunt 2. Jurisdiction and Applicable Law, John Dunt 3. England, John Dunt 4. Hong Kong, Colin Wright and Caroline Thomas 5. Singapore, Corina Song 6. Japan, Shuji Yamaguchi and John Dunt 7. Australia, Derek Luxford 8. The United States of America, Stephen V. Rible 9. Italy, Francesco Siccardi 10. Germany, Joachim F. Bartels 11. France, Gildas Rostain, Maxime de La Morineri and Marie Buzulier 12. Norway, Trine-Lise Wilhelmsen and Hans Jacob Bull 13. The PRC, Liu Guiming, Liang Jian and Cai Dongdong 14. South Africa, Andrew Robinson 15. Comparative Analysis, John Dunt
JOHN DUNT is a Consultant with Clyde & Co and also a Senior Research Fellow at the Institute of Maritime Law, University of Southampton. He qualified as a solicitor in 1972 and joined Clyde & Co in 1975. He was a partner for 30 years from 1977 to 2007 specialising in marine insurance, with particular reference to cargo insurance.
JOACHIM F. BARTELS is a partner at Blaum Dettmers Rabstein. He studied law at the University of Hamburg where he also obtained his doctorate in law. After being admitted to the bar he was head of the legal department of a shipping and trading company for some years focusing on chartering and Gafta matters. In 1977 he joined the law firm of Blaum Dettmers Rabstein in Bremen and became a partner in 1979. From 1979 to 1996 he was also a notary public. In 1996 he and another partner opened the Hamburg office of Blaum Dettmers Rabstein. His main legal work concentrates on chartering, cargo and cargo insurance matters. He is the author of a commentary of the Gencon-C/P clauses in an article in Münchener Vertragshandbuch, vol. III, 7th edn, 2012.
PROFESSOR HANS JACOB BULL was Professor of Law 1989–2011 at the Scandinavian Institute of Maritime and Energy Law, University of Oslo. He has written several books and articles in Norwegian and English on insurance, marine insurance, maritime law, road transport and petroleum, including Forsikringsrett (Insurance Law, 2008), Scandinavian Maritime Law (3rd edn, 2011, together with T. Falkanger and L. Brautaset) and Handbook in Hull Insurance (2007, together with T.-L. Wilhelmsen). He was chairman of the committees drafting the Norwegian Marine Insurance Plan 1996 (last version 2010) and the Norwegian Cargo Clauses 1995/2004. He also chaired the committee preparing a new Ship Safety Act (2007) and is presently chairman of the committee preparing a new Seamen Act.
MARIE BUZULIER is a French lawyer in the Paris office of Clyde & Co LLP where she has worked since 2009. Marie holds a Master’s degree in law (Master in Maritime law: Nantes University) and specialises in maritime law, transport law and insurance.
CAI DONGDONG is an associate with GL & Co Law Firm, Shanghai, which he joined in 2008. Before that, he spent about six months doing an internship in a regional maritime court of China. He has a bachelor’s degree in law at Hangzhou Normal University and a master’s degree in maritime law at the University of Southampton. His main practice areas include insurance, reinsurance, maritime, ship financing, international trade and related dispute resolution.
LIANG JIAN is a senior associate with GL & Co Law Firm, Shanghai, which he joined in October 2006, becoming the head of the insurance department of the fi rm. From May 2005 to September 2006, he worked for another Chinese law firm in Tianjin as a paralegal and associate. He has a bachelor’s degree in Chinese language and literature at Jiangxi Normal University and a juris master’s degree at Nankai University, Tianjin. His main practice areas include insurance, reinsurance, finance, international trade, commerce, IPR, transportation, corporate, labour, other legal matters and related dispute resolution.
LIU GUIMING is the founder and the managing partner of GL & Co Law Firm, Shanghai with an office in Guangzhou which was established at the end of 2005. He focuses on advising on insurance and re-insurance, shipping and admiralty, financing and banking, investment, corporate and labour matters and handling any related litigation and arbitration proceedings in the PRC. Before he founded GL & Co Law Firm, he joined Wang Jing & Co Law Firm, Guangzhou, in early 1999 and then founded and worked for its Shanghai branch office for about seven years during which he acted as paralegal, associate, senior associate and local superintendent. From 1995 to 1999, he was employed by the Guangzhou Maritime Rescue and Salvage Bureau of the Ministry of Communications (Guangzhou Salvage) to handle chartering, salvage, towage, offshore projects, insurance and claims matters, and gained seafaring experience on board a bulk carrier and tugs over a total period of one year. He has a bachelor’s degree in maritime law at Shanghai Maritime University and has passed the master’s degree course in insurance and banking law at Shanghai University of Finance & Economics.
DEREK LUXFORD is a partner at Sydney law firm, Hicksons, where he heads the Transport Trade & Energy Group. He has specialised in shipping and marine insurance for over three decades since he acquired a liking for this area of law during a five-year stint with several leading City law firms in London in the late 1970s and early 1980s. Prior to joining Hicksons in 2004 Derek was a partner with Phillips Fox for many years following his return from London. He is actively involved in the marine insurance industry in Australia and abroad and he is the only Australian subscribing member of the Average Adjusters Association in London. Derek has a diverse practice involving Australian and overseas clients including the London market. He has been involved in many leading marine insurance and shipping cases in Australia. In 2001 he was a member of the Advisory Committee to the Australian Law Reform Commission’s Review of the Marine Insurance Act 1909. Derek contributes to many industry and professional publications in Australia and abroad and is a frequent speaker at international conferences on shipping, trade and marine insurance.
MAXIME DE LA MORINERIE is a French lawyer in the Paris office of Clyde & Co LLP. He holds a degree in law (Master in English law: Paris II Panthéon-Assas and University College London; and Master in business law - post graduate, Paris I Panthéon-Sorbonne) and in corporate finance (Master of science in Management, EM Lyon). Maxime specialises in maritime law, insurance and reinsurance as well as international trade, energy and corporate law.
STEPHEN V. RIBLE is a partner at Mendes & Mount, LLP in New York City. He is a senior insurance coverage attorney concerning various lines of marine and energy insurance and is an experienced federal and state trial lawyer handling complex litigation involving insurance coverage and defence of assureds. He is a frequent lecturer on issues regarding insurance coverage, litigation procedures, centralized management of mass litigation, and risk management. Mr Rible is an instructor at the American Institute of Marine Insurance and St. John’s University School of Risk Management, Insurance and Actuarial Science. He is admitted to the New York, New Jersey and Pennsylvania State Bars.
ANDREW ROBINSON is a director with Norton Rose of South Africa and is the regional head of transport. He read law at UCT and completed a masters in maritime law at the University of Wales, Institute of Science and Technology. He joined Deneys Reitz in 1998 and qualified as an attorney of the High Court of South Africa in 1991. He specialises in admiralty, marine insurance and general transport law and is a past president of the Maritime Law Association of South Africa. He is a member of the International Working Group that is preparing a draft instrument on the recognition and enforcement of judicial sales, and he has written many articles on marine insurance and transport related topics and has prepared and presented papers on marine insurance in many different fora.
GILDAS ROSTAIN is Senior Partner of Clyde & Co LLP, Paris office, which he opened in 1992. He has been a member of the Paris Bar since that time and is a member of the Association Française de Droit Maritime (French Association of Maritime Law). He deals mainly with insurance litigation including, marine, non-marine, product liability, energy, shipbuilding and builders all risks liabilities. He has extensive experience of litigating disputes before all levels and types of Courts in France as well as ICC Arbitration. He is also involved in all the major casualties involving the French market.
Avv. FRANCESCO SICCARDI is senior partner of the firm Studio Legale Siccardi Bregante & C. He obtained his degree in law (hons) at the University of Genoa in 1964, with a dissertation on Marine Insurance, and started to practice in 1965 qualifying as a lawyer in 1966. He acts as consultant in non contentious matters for shipyards, shipowners, banks and other interested parties in large cross-border transactions and provides legal assistance in high profile litigation for marine and aviation underwriters, shipowners, charterers, Class Societies, international organizations, traders and other shipping operators. He is frequently appointed as single or panel member arbitrator in shipping disputes by private litigants or Arbitration Associations. He is a regular lecturer/speaker/panelist at shipping law conferences, seminars, workshops in Italy and abroad and has published several articles in various shipping law journals. He is a Titulary Member of the Comité Maritime International (CMI), a Member of the London Shipping Law Center, a member of the Board of the Italian Maritime Law Association (AIDIM), and of the Editorial Board of the Journal "Il Diritto Marittimo".
CORINA SONG is a partner in the maritime and aviation practice of Allen & Gledhill LLP. Her practice includes all areas of contentious shipping and admiralty matters, as well as both contentious and non-contentious aspects of insurance. She is recommended for her litigation work in The Asia Pacific Legal 500 and for insurance in PLC Which Lawyer? She obtained her LL.B. from the University of Hull in 1988 and an LL.M. from University College London in 1992. She was admitted as a solicitor of the Supreme Court of England and Wales in January 1992 and called to the Singapore Bar in March 1993. She is actively involved as a committee member of the Maritime Law Association of Singapore and is the immediate past Vice President of the Women’s International Shipping & Trading Association Singapore.
CAROLINE THOMAS is a solicitor at Holman Fenwick Willan in Hong Kong where she specialises in maritime and insurance law. Caroline holds a Master’s degree in Economics and History from Trinity College Dublin as well as a Diplôme du Programme International from Science Po, Paris. She qualified to practice in England in 2008 and in Hong Kong in 2010. She is a director and seminar officer of the Hong Kong Insurance Law Association (HILA). She has written chapters on Insurance Law in Taiwan (with Mark Hearty and Dean Chiang, Center for International Legal Studies); Competition Law in Taiwan ( Taiwan’s Fair Trade Act: Achieving The "Right" Balance?, with Dr. P.J. Wu, 2006 Northwestern University Press) and Time Bars in Insurance and Reinsurance in Hong Kong: An International Comparison, 2011, Clyde & Co LLP (the chapter on the law of Hong Kong law, with Simon Baker).
PROFESSOR TRINE-LISE WILHELMSEN is the director of the Scandinavian Institute of Maritime Law. She qualified as a lawyer in 1983 and took her doctoral degree in 1989. She has been a professor since 1995 and has worked at the Scandinavian Institute of Maritime Law since 1989, as part-time lawyer during 1997 and 1998 and, since July 2006 as director. She was the secretary of the Committee drafting the Norwegian Marine Insurance Plan 1996 and is now chairman of the Standing Revision Committee for the Plan. This Committee is now making a draft of a Nordic Marine Insurance Plan 2013. She has written numerous books and articles on insurance and marine insurance law, tort law, maritime law, contract law and law and economics. These include several books and articles written in English: "The Norwegian Marine Insurance Plan and Substandard Ships", Marine Insurance at the turn of the Millennium , edited by M. Huybrechts (1999, Intersentia); "Issues of marine insurance, duty of disclosure, duty of good faith, alteration of risk and warranties", SIMPLY, Scandinavian Institute Maritime Law Yearbook 2001, CMI Yearbook 2000 Singapore I; "Hull insurance of ‘latent defects’ – i.e. error in design, material or workmanship", Scandinavian Studies in Law , No. 46 (2001, Stockholm University); "Developments of Norwegian and Scandinavian Maritime Law", Il Diritto Marittimo Fasc I-2007; Handbook in Hull Insurance, co-author with H.J. Bull (2007, Gyldendal Akademisk), "Marine insurance regimes and their impact on shipping competition", Competition and Regulation in Shipping and Shipping Related Industries , ed by Antapassis/Athanassiou/Rosaeg (2009, Martinus Nijhoff). "When pirates capture the cargo ... CICG § 35 in the light of Masefield AG v. Amlin Corporate Member Ltd", SIMPLY, Scandinavian Institute Maritime Law Yearbook 2010. "Harmonization of marine insurance – current development in the light of past experience", Il Diritto Marittimo 2010 (1) and "Transport liability regimes and economic efficiency", Law and Economics. Essays in honour of Erling Eide (Oslo 2010).
COLIN WRIGHT is a barrister practicing in Hong Kong and England. Colin was called to the Bar of England and Wales in 1987 and to the Bar of Hong Kong in 1999. He is a member of Stone Chambers in London and Gilt Chambers in Hong Kong. Colin is an elected member of the Hong Kong Bar Association and is a member of the Executive Committee of the Hong Kong Maritime Law Association. He has been a Fellow of the Chartered Institute of Arbitrators since 1988.
SHUJI YAMAGUCHI is a partner of Okabe & Yamaguchi, a firm of specialised shipping and marine insurance lawyers based in Tokyo, which he founded in 1990, becoming a partner at the same time. He studied law at Kyoto University where he was awarded the degree of Bachelor of Law before qualifying as an attorney-at-law in 1982. He specialises in shipping and marine issuance and was chair of the Maritime Law Committee of the Inter-Pacific Bar Association from 2009 to 2011. He is an arbitrator of the Tokyo Maritime Arbitration Commission and has written extensively on shipping and marine insurance issues. He is co-author of Maritime Law Handbook, 2006, Kluwer, Shipping in 36 Jurisdictions Worldwide, 2012, Law Business Research, Guidebook to International Multi-Modal Transport Business, JIFFA, and Judgment Commentary of Civil Law I, Seirin Shoin.
International Cargo Insurance will naturally be consulted by marine insurance lawyers seeking an introduction to the relevant principles and practices prevailing and the relevant sources governing or setting out the position in one of the jurisdictions covered. It will further serve as an indispensable point of departure for those engaged in further attempts at regional or international harmonisation. But it will also be of more than passing interest to lawyers seeking an introduction to the general principles of insurance law in the different jurisdictions. After all, the comparative approach is relevant not only when seeking to harmonise different legal systems, but also when grappling with the reform and the improvement or modernisation of a particular municipal system of law.
Congratulations are due, then, to John Dunt and his team of contributors for a project innovatively conceived and splendidly realised.
JP van Niekerk, Professor of Law,
Department of Mercantile Law, School of Law,
University of South Africa.
This fascinating work sets out with remarkable clarity, the often misunderstood differences that can exist between jurisdictions, and in turn, their application of law in the interpretation of marine cargo insurance contracts. A work such as this is long overdue, considering as it does the reasons why such alternate positions have developed, despite a publicly voiced desire in many circles for harmonization.
The authors who have contributed to this new publication, including John Dunt who also edited this impressive work are all, as the clarity of their advice ably demonstrates, leading marine insurance law luminaries in their own countries. The book discusses how cargo insurance law has developed alongside international trade, and how the difference between common and civil law regimes has impacted the evolution of the law in many important respects.
Marine cargo insurance law continues to evolve and this book provides an up to date refresher that will be welcomed by all in need of an accurate understanding of current thinking. An example of this is the recent decision in The Cendor MOPU case. Here the Supreme Court has now seemingly harmonised English Law on inherent vice with the position previously adopted in other regimes. This case rightly receives the careful scrutiny and the concise commentary one has come to expect from John Dunt. With the challenging piracy for ransom situation still prevailing in the Gulf of Aden/Indian Ocean, similar treatment is given to the recent Court of Appeal determination of a number of fundamental issues in Masefield AG v Amlin.
For anyone involved in international cargo insurance, the United States remains a vital but sometimes uncertain jurisdiction for cargo interests, with tensions evident between federal maritime law and state law. This issue is helpfully discussed in detail with analysis of Wilburn Boat Co v Firemans Fund Insurance Co. and the impact this has had on important decisions since. Following the clear format used throughout this book, Stephen Rible gives a compelling account of the diverse jurisdiction that the United States can be, and brings considerable authority to the topics under review, with commentary supported by comprehensive case and statute referencing. This is a feature that all contributing authors have mirrored with commendable success.
The "adventure", as a concept in marine insurance receives consideration and although not in the same context, "adventure" appropriately sums up the captivating journey awaiting the reader of this seminal work, as we are guided through a variety of legal landscapes and decisions. English law and practice is covered in detail first. This is followed by the positions applying in Hong Kong, Singapore, Japan, Australia, The United States of America, Italy, Germany, France, Norway, The Peoples Republic of China, and South Africa. A final chapter provides the all important comparison analysis summarizing the differences between these jurisdictions as dealt with in detail in earlier chapters. Comprehensive appendices ensure the importance of this book as an essential standalone reference source under John Dunt’s able editorship.
A failure to understand the different approaches to contract formation and interpretation of coverage can have serious consequences for the uninformed. The difficulty facing anyone involved with marine cargo insurance though is just how to become acquainted with the many international regimes and the sometimes contradictory positions adopted. Without this understanding, contract certainty is readily undone with the scope for attendant uncertainty, poor decisions and unnecessary disputes.
This book goes a long way to remedy that difficulty and will equip the reader with the wherewithal to make informed and appropriate decisions.
Peter de Boissiere
Global Marine Claims Leader - Cargo