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Modern Law of Marine Insurance Volume Five, The

CHAPTER 7


Page 146

Implied marine warranties and the Insurance Act 2015

Robert Merkin 7.1 Sections 9, 10 and 11 of the Insurance Act 2015, following the lead of section 54 of the Australian Insurance Contracts Act 1984 and section 11 of the New Zealand Insurance Law Reform Act 1977, abolished the key principles underlying warranties as preserved in the Marine Insurance Act 1906, sections 33 to 35. However, the 2015 Act has left intact the provisions relating to specific warranties in sections 36 to 41. This chapter discusses whether those sections, despite their retention, remain of any practical importance or whether they should have been included in the cull of the old law.

Early express warranties

7.2 The term “warranty”, in use in marine policies by at the latest the end of the 17th century,1 referred in its origins to three quite separate concepts. 7.3 First, a warranty could be used to secure a promise as to the truth of statements made to the underwriters by the assured (or, in the overwhelming majority of cases, his broker) in the course of the presentation of the risk. The warranty could relate to the accuracy of a statement of fact or of the assured's intentions or opinions. Warranties of this type were thought necessary in the light of the courts' view that a false statement made in pre-contractual negotiations conferred upon the underwriters the right to treat the policy as a nullity only if it was in some way material to the risk being run. By contrast, a warranty removed the need for any investigation into materiality: all that mattered was whether or not the statement was true,2 and the courts regularly urged underwriters to use warranties if they wished to avoid the inconvenience of having to prove materiality. 7.4 Second, a warranty defined the limits of the risk run by the underwriters and operated as an exclusion. The “free from average” warranty was introduced in 1749 and incorporated into the Lloyd's Ship and Goods (SG) Policy wording formally adopted by the London market in 1789. By that provision

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corn and fish are warranted free from average, unless general, or the ship stranded: sugar, tobacco, and some other specific goods, free from average, under 5 per cent. (and all other goods, under 3 per cent) unless general, or the ship be stranded.3

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