Marine Insurance: Law and Practice




26.1 In an action1 to obtain an indemnity under an insurance contract, the insured must inter alia satisfy two, to some extent overlapping, conditions. The first is substantive: that there has been an insured loss. Secondly, the insured must satisfy the procedural requirements of the claims process. However, even when these two conditions are satisfied, the presence of a third condition may defeat the claim: viz, the insured should not contravene any overriding policy rule applying to the claims process. The third condition is in one sense a particular aspect of the second; but it also merits independent status—for the effect of non-compliance with the first and second conditions is that the insurer is not prima facie liable, whereas contravention of the third condition may defeat a claim which is otherwise valid. 26.2 The insurer’s normal defence to a claim is simply to refuse to pay or to defend an action brought against him. However, he can take the initiative and apply for the court to exercise its discretion to make a declaration of non-liability.2 If he has already paid an indemnity, he may be entitled to claim restitution.3


26.3 The insurer’s prospective liability to indemnify the insured, which arises when the contract is made and attaches, crystallises at the moment at which, on the interpretation of the policy, an insured peril causes a loss to the latter’s insurable interest. The substantive elements of an insurance claim (in particular, whether the requirements of insurable interest, insured peril and causation have been satisfied) are appropriately dealt with elsewhere and need not be repeated for the purposes of the current discussion, which is concerned with the claims process.4


Notice of loss 5

26.4 Although an insurer is liable to pay the insured from the moment at which an insured loss occurs, in practice the insurer will need to have notice of the loss before he knows that he must pay. However, there is controversy as to whether the insured has a duty to notify the insurer of the loss and, if so, when the duty must be discharged. Certainly, there is no clearly established general rule at common law that an insured needs to give immediate notice of a loss to the insurer.6 This may be because parties have always been free to agree such a duty expressly, and in most non-marine insurance contracts traditionally have done so. But the converse remains true; and equally it has not been established that notice need not be given. 26.5 If the point arose for decision, recent attention to ideas of good faith and cooperation in insurance contracts might well influence a court to decide that there is a duty at common law to give notice within a reasonable time of the loss. The principal justification for such a duty would be to enable the insurer to take whatever steps he felt necessary to safeguard his interests. This is provided for in marine insurance by the Marine Insurance Act 1906, section 78(4) and the sue and labour or duty of assured clauses in marine policies, which require the assured to take reasonable measures for the purposes of averting or minimising losses.7 Doing so may involve notification to the insurer, which may be the reason why it has not been the practice to insert specific notification duties into marine policies. 26.6 In the case of a constructive total loss, the Marine Insurance Act 1906 specifically provides that an insured who wishes to exercise his election to abandon the subject matter to the insurer and to claim for an actual total loss8 must give notice of abandonment; and, if he fails to do so, the loss can only be treated as a partial loss.9 Furthermore, in any case the contract may stipulate that the insured give notice of loss. If so, it will be a question of interpretation whether the stipulation is a condition precedent to recovery or a term rendering the insured liable to damages for the loss caused to him by its non-fulfilment. 26.7 Where the International Hull Clauses 2003 apply, in the event of an accident whereby loss, damage, liability or expense (“LDLE”) may result in a claim under the insurance, notice must be given to the leading underwriters(s) as soon as possible after the date on which the assured, owners or managers became aware of such LDLE, so that a surveyor may be appointed if the leading underwriter(s) so desire(s).10 If notice is not given to the leading underwriter(s) within 180 days of that date, no claim is recoverable under the insurance in respect of such LDLE, unless the leading underwriter(s) agree(s) to the contrary in writing.11

Particulars of loss

26.8 There is no rule of law that an insured must provide the insurer with particulars of his claim. However, this may be required by a term of the contract, whether as a condition precedent to liability or a term which renders the insured liable to pay damages in the event that its breach causes loss to the insurer. Whatever the contract provides, in practice the insured may need to provide particulars of his claim in so far as he needs to provide proof of his loss.12

Separate causes of action

26.9 Separate causes of action must be pleaded as such. For example, a claim for an indemnity against collision liability or for sue and labour expenses must be pleaded separately from a claim for loss of the subject matter insured.13

Proof 14

26.10 Since an insurer’s liability to indemnify the insured arises prospectively when the contract is made and attaches, and crystallises when the loss occurs, it is not dependent on the insured’s proving an insured loss unless the contract so provides. Furthermore, where the contract requires the insured to provide particulars of loss, this does not mean that he is therefore required to provide proof that there has been an insured loss; and an insured who does provide such particulars does not by that act alone prove that there has been such a loss. If the contract actually requires the insured to prove loss, his failure to do so could render him liable to pay damages in the (perhaps unlikely) event that the omission caused loss to the insurer. However, the insured’s entitlement to an indemnity would remain unless the contractual requirement to prove loss were a condition precedent to the insurer’s liability. 26.11 Of course, whether or not the insured is under a duty to prove loss under the law or terms governing the contract, if the insurer disputes or fails to discharge his liability, the insured will as a matter of civil procedure be required to prove his right to an indemnity. The essential elements are as follows. First, the insured must have had an insurable interest. Secondly, this must have been covered by the policy at the relevant time. Thirdly, there must have been an operative insured peril. Fourthly, there must have been a causal link between the operation of the insured peril and the loss. Fifthly, the insured must have suffered a loss to his insured interest. Sixthly, the insured must show the extent or amount of his loss.

Burden of proof 15

26.12 “[M]arine insurance cases form no exception to the general rule that before a plaintiff can become entitled to judgment he must prove his case, that it to say, he must establish his cause of action to the reasonable satisfaction of the tribunal.”16 The burden is on the insured to demonstrate “on the balance of probabilities” that it is more probable than not that an insured loss has occurred.17 If the evidence is insufficient or equivocal,18 the claim should fail.19 “[W]here parties advance rival factual theories, the court is not bound to accept either; and, … if the court finds itself unable to make a positive finding either way on some vital question of fact, the verdict will go against the party on whom the burden of proof lay. However, a court will obviously be reluctant to arrive at such a conclusion and in practice it very rarely happens.”20 26.13 In such a case the claimant may succeed if he can rely on a presumption in his favour;21 however, if the presumption is rebuttable, the insurer may adduce evidence to rebut it.22 26.14 Bailhache J has expressed the general rule as that “The plaintiff must prove such facts as bring him prima facie within the terms of the promise”.23 Thus, except insofar as it is necessary in order to prove that the loss arose from an insured peril,24 the claimant normally does not have to show that the loss did not arise from another cause or to introduce evidence in order to overcome possible defences to his claim.25 However, if his right to an indemnity is qualified or conditional,26 he must show that the relevant condition is satisfied before he can succeed.27 26.15 Bailhache J illustrated the point “in the case of a policy with the particular average franchise. There, reading the promise and the exception together, the promise is not a promise to pay particular average except in certain events. It is a promise to pay particular average exceeding 3 per cent. To bring himself within that promise a plaintiff must shew more than a particular average loss; he must shew a particular average loss exceeding 3 percent”.28 Similarly, the Institute Clauses deductible clause provides that “No claim … shall be payable … unless the aggregate of all such claims … exceeds [a specified amount] in which case this sum shall be deducted”.29 On its construction, the clause does not entitle the insured to succeed subject to the insurer’s disproving liability for the deductible—it requires the insured to prove that his claim exceeds the amount deductible before he can recover. 26.16 A claimant may or may not have to prove fortuity. This depends on the nature of the alleged peril. Thus, in a claim for a loss caused by fire, it is sufficient for the insured to prove that there was a fire and that it caused the loss; it is not necessary for him to prove further that the fire arose fortuitously. He may therefore prima facie be entitled to recover though the fire was caused deliberately and even if the facts of the loss are peculiarly within the knowledge of the insured.30 Conversely, “Under a policy which provides cover against accidental damage, an insured undoubtedly bears a burden to shew on the balance of probability that the relevant loss was accidental so far as he was concerned. But, in order to shew that the loss was accidental so far as he was concerned, the insured does not necessarily have to be able to explain what caused it”.31 Thus, a person claiming for a loss caused by perils of the sea must prove both that there was an operative peril of the sea and that it arose fortuitously. However, in both cases the insurer remains entitled to prove a defence to which he is entitled; and so an insurer who appears prima facie to be liable may still defeat the claim by showing, for example, that the insured’s wilful misconduct32 was the cause of a fire33 or that the insured connived in his servant’s barratry.34 26.17 Although it is open to underwriters to suggest and seek to prove an uninsured cause of loss, there is no obligation on them to do so.35 A defendant insurer may simply traverse the claim, leaving the claimant to prove his case (and not putting forward an alternative explanation of events), or he may lead evidence either to counter the claim or to demonstrate the application of a defence.36 A defendant who simply traverses the allegations in the claim cannot set up an affirmative case for an alternative explanation of the cause of the loss.37 Otherwise, if the claimant has prima facie discharged his burden of proof, the defendant may succeed by adducing evidence which contradicts the claimant’s evidence or simply indicates that the circumstances are equivocal, so undermining the claimant’s case on the balance of probabilities. Where underwriters seek to prove an uninsured cause of loss, it is not necessary for them to prove, even on a balance of probabilities, the truth of their alternative case.38 Similarly, the defendant may rebut a presumption upon which the claimant needs to rely. 26.18 If the defendant relies on a specific defence, the evidential burden shifts to him positively to prove the application of the defence.39 The effect of a potential defence is generally dependent on the defendant’s decision to assert that defence.40 26.19 An insurer who relies on a contract exception41 must prove that the exception applies.42 However, if the exception is itself subject to an exception, the burden will fall on the insured to bring himself within the benefit of the exception to the exception.43 The application of an exception must normally be proved on the balance of probabilities. 26.20 However, although neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts, nevertheless, regard should be had to inherent probabilities.44 Thus, in practice, a heavier onus rests upon someone who alleges deliberate or reckless wrongdoing, particularly where the allegation is equivalent to one of activity of a criminal nature.45 The normal burden in criminal trials is of proof beyond reasonable doubt, a higher one than the civil burden of a balance of probabilities. A finding of guilt carries more serious consequences for the defendant than in civil proceedings, where the “accused” does not have the advantage of the safeguards in criminal trials and an equivalent finding is therefore not lightly to be reached. Indeed, it has been said that “there is, of course, and must be, a strong presumption against the commission of an act so criminal as the wilful throwing away of a ship”.46 There are dicta that a finding of activity of a criminal nature (eg, of scuttling) will not be found in civil proceedings “unless it is proved with the same degree of certainty as is required for the proof of a crime”.47 However, this is putting it too highly. The true position is that “the weight of evidence required must be commensurate with the seriousness of the misconduct, both fraudulent and criminal, alleged”.48 26.21 There is a potential difficulty in a claim for loss caused by barratry, which by definition involves an allegation of wrongdoing by servants of an owner to the prejudice of the owner, and therefore without the consent of the owner.49 Arguably ex hypothesi, this should impose upon a claimant owner not only the burden of proving his servant’s wrongdoing but disproving his own possible complicity in the relevant conduct.50 One factor tending against this view is that the claimant is entitled to be treated as innocent of wrongdoing unless the contrary is proved.51 Partly for this reason, the consensus has been reached that: the owner only needs to demonstrate the barratrous nature of his servant’s conduct; and an insurer who defends on the ground of the owner’s complicity in the servant’s conduct must accept the onus of proving that defence.52 However, the point remains arguable in the Supreme Court.53 26.22 The normal necessity of proof of allegations, and in particular the higher standard of proof where serious wrongdoing is alleged, pose a serious hurdle for an insurer who suspects scuttling or similar conduct and evidence of what really happened is particularly within the control of the insured or even, by virtue of the events in issue, no longer available at all. In such a case, therefore, although the weight of evidence must still be properly assessed, the courts are willing to consider all circumstances, though they may not individually be decisive, which cumulatively establish beyond reasonable doubt that the subject matter was dishonestly lost.54 26.23 Relevant factors include the following:55 high valuation of the subject matter and the amount of insurance;56 whether or not evidence is precise, vague or complete, in particular whether opportunities have been taken to proffer or test explanations;57 the state of the weather;58 the character, antecedents and liquidity of the alleged scuttler;59 possible motives, both for wilful casting away and for not casting away;60 the threat to reputation and of blackmail of the alleged scuttler;61 the competence and record of the master and crew;62 the ease with which those abandoning the vessel and their property could be preserved;63 the extent to which members of the crew cooperated with salvors;64 rescue of ship’s papers (which a master might have an interest in preserving, for the sake of his reputation);65 and large payments to the master or crew after the loss (particularly by an impecunious owner).66 26.24 Since discharge of the burden of proof requires demonstration of probability, where there have been attempts by an insured to prove that there has been an insured loss and by the insurer that there is an alternative explanation but the court is not satisfied that either story is more probable than the other, the claim must fail.67 It is not legitimate to decide in favour of the least improbable explanation,68 and conjecture or surmise is impermissible; but “if, in a case where you have to weigh the probabilities, the probabilities are far greater in support of one view than in support of the other, a court is justified, and not only is justified but ought to come to a definite conclusion upon the question”.69


26.25 When facts are given in evidence, without further elucidation or contradiction, certain inferences of fact may be drawn. These are often referred to as “presumptions” of fact. However, unlike presumptions of law (which may or may not be rebuttable), the court is not bound by them. In practice, these inferences of fact will be accepted unless contradicted; but they are rebuttable70 and therefore in practice71 require the other party to prove controverting facts.72 26.26 There are limits to presumptions. For example, they apply where other evidence is missing or equivocal but may be displaced by the evidence which is produced. Thus, in the case of an unexplained loss, the presumption of loss by perils of the sea may be displaced by evidence that the loss was just as, or more, likely to have arisen as a result of war perils.73 Furthermore, though the effect of a presumption is to help decide one element of a claim, it will not inevitably decide others. Thus, the fact that a vessel may be presumed to be lost by perils of the sea or to have become a total loss does not obviate the necessity of proof that the loss was covered by the policy, by showing, for example, that the vessel had sailed on the contract voyage74 or that the loss had occurred during the period insured.

Missing ships

26.27 Bankes LJ has stated that “I understand the word [‘missing’] as expressing a state of things in which a vessel, having started from some known port on some known voyage, has never arrived at her destination, and has not been reported or sighted for so long that the only reasonable conclusion is that she has been lost, and has been lost in circumstances which make it impossible to say what has been the cause of the loss or how it occurred”.75 A year previously, Rowlatt J said: “the probability of a story being concocted in respect of an overdue ship is one that has to be faced, and is more formidable than if a person bound himself to the story of finding a thing from a ship which is not overdue”.76

Total loss

26.28 When a ship is missing, details are notified to Lloyd’s Market Intelligence department, which institutes enquiries. The Marine Insurance Act 1906, section 58 provides that, “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”.77 What is a reasonable time is a question of fact.78 In practice, Lloyd’s Market Intelligence department will post a vessel as missing if enquiries are unfruitful after three months. The effect of the presumption is that an actual total loss is presumed to have occurred. Thus, it is unnecessary for an insured to give notice of abandonment; and an insurer who has satisfied a claim for a total loss is entitled to claim the vessel if she eventually turns up.79 However, it remains necessary for the assured to prove that the vessel was on the contract voyage80 and it remains necessary to prove that she was lost as a result of an insured peril.

Unexplained loss (inference of unseaworthiness; presumption of loss through perils of the sea)

26.29 A ship is prima facie deemed to be seaworthy81 and an insurer who claims that a loss was caused by unseaworthiness has the burden of proving it.82 However, where, within a short time of sailing from her port of departure,83 a ship is lost or becomes incapable of proceeding on her voyage without any explanation, such as having encountered a storm, it may be presumed from the facts that the loss arose from a cause existing at the time of sailing, ie, due to initial unseaworthiness, and not from an insured peril.84 If a ship which the assured proves to have been seaworthy on sailing85 sinks in good weather and calm seas in unexplained circumstances, there is a rebuttable presumption that she was lost by perils of the sea.86 If there is no proof of initial unseaworthiness, or absence of explanation, the presumption does not apply.87

Illegality and public policy

26.30 The law generally provides that a claim may fail if it is based on illegality or contrary to public policy.88 In The Bunga Melati Dua 89 it was held that it did not constitute an actual total loss through irretrievable deprivation of cargo seized by pirates when it was recovered by the carrying shipowner’s payment of a ransom, the practice of ransom being morally dubious but not illegal or demonstrably contrary to public policy. However, it was indicated that the position may be different where property is recoverable only on performance of an illegal act, such as by way of bribery or constructive bribery, done in order to obtain an improper advantage.90 A problem in such a case may arise if the assured pays a bribe to recover his property and claims this as a sue and labour expense, incurred to avert or minimise loss, for the claim will be based on the performance of an illegal act by the claimant assured.91 Paradoxically, this may both release the insurer from a lawful obligation to pay a full indemnity for a total loss (because the property is no longer considered lost) and entitle him to refuse to pay a claim for the sue and labour expense incurred to reverse that loss (because it is based on illegal conduct). 26.31 It has been queried “whether a sue and labour clause covers payments made under threats of total loss, from whatever source, which are totally repugnant to English notions of legality”.92 The position here is prima facie different, because the assured is paying to avert or minimise loss and is the victim, rather than the perpetrator, of illegitimate conduct, so his conduct is not necessarily tainted by it. But, if the vitiating rule seeks to prohibit his own conduct, whether per se or by way of participation in the conduct of the person making the threat, then his claim may well be defeated.

Time of action

26.32 At common law there has been no general rule that an obligation should be performed, or that a claim should be instituted, within a particular period of time.93 However, this position has been altered by statute and by contract.


26.33 By statute, claims to enforce contractual obligations must generally be brought within six years from the date when the cause of action arose.94 An assured’s cause of action is constituted at, and the limitation period runs from, the date of the casualty.95

Time of payment and interest

26.34 It has been a general rule that an insurer is not liable to pay damages to compensate an insured for the loss suffered from late payment of the indemnity due under an insurance policy.96 However, by contract the insurer may be required to act promptly, as he is under the International Hull Clauses 2003.97 Once liability is established, interest may be awarded.98


The Market Reform Contract

26.35 An object of the MRC has been to simplify and expedite the claims process so far as possible, in particular: to allow simple claims to flow through quickly, whilst providing for more complex claims to be handled in a timely manner; to insulate clients and their chosen intermediaries from complexities arising from the nature of a subscription market; to avoid process fragmentation between the different market participants; and to make the claims process more efficient and transparent, so as to increase the availability of information to assureds and to reduce the necessity to seek further information. 26.36 Specifically, the MRC continues (from the time of placement) the application of the principle that assureds and brokers should deal with only one lead claims underwriter or slip leader (“one-stop shop”). The intention is for the lead to have responsibility for ensuring that the following market is notified of the claim and subsequent updates; and that he should coordinate claim management in accordance with the claims principles and communicate with the assured/broker as appropriate. The contract may provide for the slip leader to deal directly with the assured, without the broker’s having to intermediate.

The International Hull Clauses 2003

26.37 The London Market Principles have influenced the claims provisions of the International Hull Clauses, originally issued in 2002, then revised in 2003. The claims provisions are in Part 3 (cls, 42-50) of the Clauses. Clause 1.1 states that “Parts 2 and 3 shall be those current at the date of inception of this insurance”.99

Follow the leader

26.38 Clause 42 (“Leading underwriter(s)”100) is a “follow the leader” clause. It provides that, where there is co-insurance, all subscribing underwriters agree that the leading underwriter(s) designated in the slip or policy may act on their behalf so as to bind them for their respective several proportions in respect of:
  • (1) the appointment of surveyors, experts, average adjusters and lawyers, in relation to matters which may give rise to a claim under the insurance;
  • (2) the duties and obligations to be undertaken by the underwriters, including but not limited to, the provision of security;101
  • (3) claims procedures, the handling of any claim and the pursuit of recoveries; and
  • (4) all payments or settlements to the assured or to third parties, other than those agreed on an ex gratia basis.102
26.39 Nonetheless, any underwriter may require such matters to be referred to the co-subscribing underwriters,103 though it is not provided that other underwriters have any right to affect the actions of the leading underwriter other than through consultation. In particular, the leading underwriter’s authority is generally not subject to the manner in which he exercises his functions;104 and he is generally free to exercise his judgement on matters of both quantum and liability, including whether or not to avail himself of a defence for rejecting a claim.105 Thus, it is obviously right that a voidable contract (which ex hypothesi remains fully effective until exercise of the right of avoidance106) remains in force until the lead underwriter avoids it. It has also been held that, although strictly speaking a marine insurer is immediately discharged from liability by the insured’s by breach of warranty, underwriters who have agreed to follow their leader cannot claim to be discharged before their leader has made a decision whether or not to reject a claim for breach of warranty.107 This judgment is consistent with the contract’s remaining in force by virtue of an insurer’s subsequently waiving reliance on the breach.108 However, it is more controversial whether a following underwriter would be disentitled from asserting that the contract had been frustrated, and so automatically discharged by law, on the ground that the lead underwriter had not yet decided whether to rely on that defence. 26.40 To the extent of their respective several proportions, the co-subscribing underwriters must indemnify the leading underwriter regarding all liabilities, costs and expenses incurred in respect of these matters.109 Furthermore, if the leading underwriter requires expenses incurred by or on behalf of the underwriters to be collected for a party instructed by him, the collecting party is entitled to charge 5 per cent of the amount collected for this service or such other amount as the leading underwriter may agree in advance; and the underwriters are liable to pay this fee.110 26.41 Although a contract incorporating the International Hull Clauses 2003 is generally subject to the jurisdiction of the English High Court of Justice111 and to English law and practice,112 this is specifically stipulated to be the case for the agreement in Clause 42 between the leading and co-subscribing underwriters.113

Tender provisions

26.42 The leading underwriter is entitled to decide the port to which the vessel shall proceed for docking or repair (the actual expense of the voyage arising from compliance with his requirements being refunded to the assured) and has a right of veto concerning a place of repair or a repairing firm.114 He may also take tenders or require further tenders for the vessel’s repair.115 Fifteen per cent is deductible from the amount of the ascertained net claim if the assured does not comply with these tender provisions.

Duties of the assured

26.43 Upon request and at his own expense, the assured must provide the leading underwriter with all relevant documents and information that he might reasonably require to consider any claim.116 Also, upon reasonable request, the assured must assist the lead or his authorised agents in the investigation of any claim, including: interviews of any of the assured’s (ex-)employees or agents; interviews of any third party whom the lead considers may know of relevant matters; surveys of the subject matter insured; and inspection of the vessel’s classification records.117 26.44 As discussed above, there are sanctions for an assured who promotes a fraudulent claim or employs a fraudulent device in pursuing an otherwise legitimate claim.118 It was there noted that the solution to this problem in the International Hull Clauses 2003 is to make it a condition precedent to the underwriters’ liability that the assured shall not at any stage prior to the commencement of legal proceedings knowingly or recklessly: mislead or attempt to mislead the underwriters in the proper consideration of a claim or settlement by relying on any false evidence; or conceal from the underwriters any circumstance or matter material to the proper consideration of a claim or a defence to such a claim.119

Provision of security

26.45 If the assured is obliged to provide security to a third party in order to prevent the arrest of, or to obtain the release of, the vessel, due to an accident or occurrence giving rise to a claim alleged to be covered under the insurance, the underwriters must give due consideration to assisting the assured by providing security on behalf of the assured or counter-security, in a form to be determined by the leading underwriters.120

Duties of the underwriters in relation to claims

26.46 Upon the notification of loss, damage, liability or expense which may result in a claim under the insurance, the leading underwriter may, at his sole discretion: instruct a surveyor to report to him concerning the cause and extent of the damage, the necessary repairs and the fair and reasonable cost thereof and any other matter which the leading underwriter or surveyor considers relevant; and confirm the appointment of an independent average adjuster to assist the assured in the preparation of the claim.121 The making of such appointments is not an admission by the underwriters that the accident, occurrence or resulting claim is covered under the insurance or a waiver of any rights or defences that the underwriters may have under the insurance or at law.122 Subject to no conflict of interest being identified by the leading underwriter,123 the surveyor’s reports must be released without delay to the assured and the appointed average adjuster.124 The leading underwriter is entitled to request the appointed average adjuster to provide status reports at any stage.125 26.47 A policy of the London Market Principles is for insurers to seek to pay losses at the earliest opportunity, either directly or by drawdown against a letter of credit. In line with this, the International Hull Clauses 2003 require the leading underwriter to give prompt consideration to the making of a payment on account upon the recommendation of the appointed average adjuster or, if no adjuster is appointed, upon the request of the assured supported by appropriate documentation.126 In any event, the leading underwriter should make a decision in respect of any claim within 28 days of receipt of the appointed average adjuster’s final adjustment or, if no adjuster is appointed, of a fully documented claim presentation sufficient to enable the underwriters to determine their liability in relation to coverage and quantum.127 If the leading underwriter requests additional documentation or information to make a decision, he must make his decision within a reasonable time after receipt of it or of a satisfactory explanation as to why it is not available.128

Payment of claims

26.48 It is one of the London Market Principles that direct payments should be used where applicable. The International Hull Clauses 2003 provide that, subject to the terms of any assignment,129 claims should be paid to the loss payee or, if no loss payee has been agreed, to the assured or as they may direct in writing.130 When made, such payment, whether in account or otherwise, is a complete discharge of the underwriters’ obligations under the insurance in respect of the amount so paid.131


26.49 The International Hull Clauses 2003 make provision for the payment of expenses and recoveries in accordance with whether losses are insured or uninsured. Uninsured losses mean loss or damage to the subject matter insured and any liability or expense which would have been recoverable under the insurance but for the application of the deductible(s) clause132 and the limits of the insurance.133 26.50 Following on from general common law, statutory and contractual duties to avert or minimise loss,134 the International Hull Clauses 2003 provide that, whether or not the underwriters have paid a claim or agreed to pay a claim or potential claim under the insurance, the assured must take reasonable steps:
  • (1) to assess as soon as possible whether there are any prospects of a recovery from third parties in respect of matters giving rise to a claim or to a potential claim under the insurance;
  • (2) to protect any claims against such third parties if necessary by the commencement of proceedings and the taking of appropriate steps to obtain security for the claim from third parties;
  • (3) to keep the leading underwriter and the appointed average adjuster (if any) advised of the recovery prospects and any action taken against third parties; and
  • (4) to cooperate with the leading underwriter in the taking of such steps as may be reasonably required to pursue any claims against third parties.135
26.51 Reasonable costs incurred by the assured in discharging these duties are payable by the underwriters in the same proportion as the insured losses bear to the total of the insured and uninsured losses.136 Provided the underwriters’ written agreement to reimburse has been obtained, where the assured has incurred reasonable costs under (2) (protecting claims against third parties) but no claim is recoverable under the insurance, the underwriters will nevertheless reimburse such costs to the extent agreed.137 26.52 In the event of recoveries from third parties in respect of claims which have been paid in whole or in part under the insurance: the reasonable costs and expenses incurred in making such recoveries from the third party must be deducted first and returned to the paying party; then the balance should be apportioned between the underwriters and the assured in the same proportion that the insured losses and uninsured losses bear to the total of such losses.138 26.53 In a case generally governed by the International Hull Clauses but where coverage is not provided by the 3/4ths collision liability clause:139 where the insured vessel is in collision with another vessel and both vessels are to blame, then, unless the liability of one or both vessels becomes limited by law, any recovery due to the underwriters shall be calculated on the principle of cross-liabilities140 as if the respective owners had been compelled to pay to each other such proportion of each other’s damages as may have been properly allowed in ascertaining the balance or sum payable by or to the assured in consequence of the collision.141

Dispute resolution

26.54 Subject to the overriding provision that the insurance is subject to the jurisdiction of the English High Court of Justice, except as may be expressly provided to the contrary,142 disputes between the assured and the underwriters, if not settled amicably by negotiation, may be referred at the request of the assured or the underwriters to mediation or other form of alternative dispute resolution and, in default of agreement as to the procedure to be adopted, any such mediation or other form of alternative dispute resolution should be in accordance with the current CEDR Solve model procedures.143

1 1.MIA 1906, s.90: “In this Act, unless the context or subject-matter otherwise requires, ‘action’ includes counter-claim and set-off”. See generally Mance et al., Insurance Disputes, 3rd edn (2012).

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