Warranties. by Dr Nicholas G. Berketis. ATHENS UNIVERSITY OF ECONOMICS AND BUSINESS, MSc in International Shipping, Finance and Management

Transcription

1 Warraties by Dr Nicholas G. Berketis

2 Geeral There are two types of warraties idetified by the Marie Isurace Act (1906): express & implied warraties. A warraty i marie isurace, whether express or implied, is ideed a very special term of the cotract. I the law of marie isurace, a warraty is also referred to as a promissory warraty ad this is made clear by Sectio 33(1), which defies a warraty to mea: a promissory warraty, that is to say, a warraty by which the assured udertakes that some particular thig shall or shall ot be doe, or that some coditio shall be fulfilled, or whereby he affirms or egatives the existece of a particular state of facts.

3 Commo features betwee express & implied warraties A promissory warraty does ot have to be material to the risk; A promissory warraty must be exactly complied with; There is o defece for a breach of a promissory warraty; A breach of a promissory warraty is irremediable; A causal coectio betwee breach ad loss eed ot be show; A breach of a warraty automatically discharges the isurer from liability; A breach of warraty may be waived.

4 Expressed Warraties (1 / 4) A expressed warraty, cotrasted with a implied warraty, is a coditio of the cotract which is expressed ad set forth i the Policy. The provisios of the Marie Isurace Act (1906) i regard to the expressed warraties are as follows: (1) A express warraty may be i ay form of words from which the itetio to warrat is to be iferred. (2) A express warraty must be icluded i, or writte upo, the policy, or must be cotaied i some documet icorporated by referece ito the policy. (3) A express warraty does ot exclude a implied warraty, uless it be icosistet therewith. Marie Isurace Act (1906), Sectio 35

5 Expressed Warraties (2 / 4) Strict compliace with ay warraty so expressed is absolutely essetial; otherwise the cotract becomes ivalid, ad the Isurer is discharged from liability as from the date of the breach of warraty. Nor does it avail the Assured if, i a give case, the particular breach has had o relatio whatever the loss which has occurred; or if the breach of warraty has bee remedied ad the warraty complied with before the loss occurred.

6 Expressed Warraties (3 / 4) Where the subject-matter isured is warrated well or i good safety o a particular day, it is sufficiet if it be safe at ay time durig that day Marie Isurace Act (1906) Sectio 38

7 Expressed Warraties (4 / 4) Oe of the expressed warraties most costatly met with is a warraty to the effect that a vessel shall sail o or before a certai date. A questio may the arise as to what costitutes a sailig withi the meaig of such a warraty. It is ot ecessary i order to satisfy the warraty that the vessel shall have actually quitted her port of departure. It will be sufficiet if the vessel has started o her voyage with everythig ready for its prosecutio, ad able to leave port if ot preveted by some accidet. But if aythig is watig i order to eable her to proceed o her voyage, such as a full complemet of crew, or a clearace at the custom house, ad it is ecessary i cosequece to stop for these, the mere breakig of groud will ot satisfy the warraty. The test is whether there was a clear itetio o the part of the master, whe the vessel left her moorigs, to proceed directly o the voyage. The motive of movig the vessel from her moorigs must be looked to, ad that motive supplies the test whether or ot the warraty has bee complied with.

8 Warrated part value uisured" A warraty frequetly met withi isuraces o hulls of vessels is a warraty that a certai sum, or so much per cet, of the valuatio shall be uisured, i.e. that the Ower shall, i effect, be his ow Isurer for the specified sum or percetage. Ad i some istaces the willigess of a shipower to ru part of the risk himself is a elemet ot ufavorably regarded by the Uderwriters, as the shipower is the pecuiarily cocered i the evet of loss or damage occurrig.

9 Geeral Isurace Co. Ltd. of Trieste v Cory I that case a shipower valued his vessel for isurace at STG 12,000 ad isured her for STG 9,600, warratig that i respect of the remaiig STG 2,400 he would remai uisured, or, i other words, be his ow uderwriter. He subsequetly heard rumours that some of the Uderwriters o the STG 9,600 Policy were likely to become isolvet, so, like a prudet ma, he effected further isuraces to cover the probable deficiecy which might arise i the evet of loss i cosequece of some of the origial uderwriters beig uable to meet their liabilities. Mr.Justice Mathew held that, i such circumstaces, the effectig of the further isuraces by the shipower was ot a breach of the warraty.