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From the time of Elizabeth I in the second half of the sixteenth century, London has dominated the marine insurance markets. This led the English to develop a law of marine insurance as well: a Chamber of Assurances was established in England in 1575, and the law of marine insurance, rooted in custom, developed through the cases decided by the courts.
In the United States, marine insurance underwriting began in the eighteenth century, although British firms continued to dominate. The American law of marine insurance took its cue from English law; English legal precedents were cited routinely in American courts. For fifty years after the English law was codified in the Marine Insurance Act 1906 (MIA), it could truly be said that there was a unified Anglo-American law of marine insurance, and that English law was part of the "general maritime law" of the United States.
The unity of the Anglo-American law, which was so beneficial to the functioning of the international marine insurance industry, was broken abruptly in 1955 by the decision of the United States Supreme Court in Wilburn Boat v. Fireman's Fund Insurance Co., a case that created controversies over the uniformity of the law, which have yet to subside. The purpose of this work is to explore the extent of the breakdown of the uniformity of the law and to point to its cure.
| Preface | p. ix |
| Table of Cases - English | p. xi |
| Table of Cases - American | p. xviii |
| Table of Cases - Other | p. xxviii |
| Table of Statutes, Statutory Instruments, and Conventions | p. xxix |
| Introduction | p. 3 |
| The Scope of Marine Insurance | p. 3 |
| The Marine Insurance Policy | p. 4 |
| Hull Insurance | p. 5 |
| Cargo Insurance | p. 6 |
| Freight Insurance | p. 9 |
| Protection and Indemnity Insurance | p. 9 |
| Objectives and Purpose of This Study | p. 12 |
| The Breakdown of Uniformity | p. 13 |
| An Overview of the Substantive Extent of the Breakdown of Uniformity | p. 15 |
| Thesis and Theoretical Framework | p. 17 |
| Toward a New Convergence of Anglo-American Law | p. 19 |
| The Wilburn Boat Case and the Breakdown of the Uniformity of English and American Law | p. 20 |
| Background: The Influence of History | p. 20 |
| England | p. 20 |
| United States | p. 23 |
| Tort Jurisdiction | p. 24 |
| Jurisdiction over Contracts and Marine Insurance | p. 25 |
| The Challenge to Uniformity: State Law and Considerations of Federalism | p. 28 |
| A Jurisprudential Interpretation of Wilburn Boat | p. 33 |
| Legacy of Wilburn Boat: Conflicts and Confusion | p. 35 |
| Conclusion | p. 37 |
| Jurisdictional and Definitional Considerations | p. 39 |
| Wilburn Boat and Admiralty Jurisdiction | p. 39 |
| Introduction | p. 39 |
| An Illustrative Example: Youell v. Exxon Corporation | p. 40 |
| Federal Admiralty Jurisdiction over Marine Insurance Contracts in the United States | p. 41 |
| Choice of Law and Jurisdiction in English Law | p. 44 |
| Resolution of the Crisis: A Statutory Definition of Marine Insurance | p. 46 |
| The Point of Departure: The Definition of Marine Insurance under the British Marine Insurance Act | p. 47 |
| Insurable Interest | p. 50 |
| Direct Actions | p. 55 |
| The Subject Matters of Marine Insurance | p. 59 |
| Conclusion | p. 63 |
| Effecting The Contract | p. 64 |
| A Bit of History | p. 64 |
| Contract Formation | p. 66 |
| Effecting Insurance at Lloyd's | p. 66 |
| Selected Contract Formation Issues | p. 67 |
| The Policy | p. 69 |
| Introduction | p. 69 |
| Policy Requirements | p. 70 |
| Subject Matter | p. 70 |
| Duration | p. 71 |
| Valued and Unvalued Policies | p. 72 |
| The Relationship between the Policy and the Slip | p. 73 |
| Marine Insurance Intermediaries | p. 77 |
| Introduction | p. 77 |
| The Broker's Agency Relationship | p. 77 |
| The Broker's Duty to Carry Out the Assured's Instructions | p. 79 |
| The Broker's Duty of Care | p. 80 |
| The Fiduciary Duties of the Broker | p. 80 |
| The Broker's Liability to Third Parties | p. 80 |
| Payment and Return of the Premium | p. 82 |
| Conclusion | p. 84 |
| The Duty of Utmost Good Faith | p. 85 |
| Introduction | p. 85 |
| The Duty of Utmost Good Faith--General Considerations | p. 88 |
| The Source of the Duty | p. 88 |
| English Law | p. 89 |
| American Law | p. 92 |
| The Development of the Rule of Utmost Good Faith in the United States | p. 92 |
| Avoidance of the Rule: State Law and the Wilburn Boat Decision | p. 94 |
| The Particular Elements of the Duty of Utmost Good Faith | p. 98 |
| Misrepresentation | p. 98 |
| Non-Disclosure | p. 101 |
| Mutuality | p. 107 |
| Materiality | p. 107 |
| English Law | p. 107 |
| American Law | p. 116 |
| Inducement (Reliance and Causation) | p. 117 |
| Burden of Proof and the Presumption of Inducement | p. 119 |
| The Role of Agents | p. 121 |
| The Duration of the Duty | p. 122 |
| Waiver | p. 124 |
| The Legal Effect of the Breach | p. 125 |
| Rescission | p. 125 |
| Proportionality | p. 126 |
| Damages | p. 127 |
| Conclusion | p. 128 |
| Warranties | p. 130 |
| Introduction | p. 130 |
| The Historical Development of Warranty: The Interrelationship with Promise, Condition, and Misrepresentation | p. 132 |
| Land Law | p. 132 |
| Trespass (Deceit) on the Case | p. 133 |
| Assumpsit | p. 134 |
| Warranty in the Law of Marine Insurance | p. 138 |
| The Contemporary Law of Warranties | p. 139 |
| The Nature and Function of Warranty | p. 139 |
| Creation of Warranties | p. 141 |
| The Literal Compliance Rule | p. 142 |
| English Law | p. 142 |
| American Law | p. 142 |
| The Consequences of Breach | p. 145 |
| English Law: The Rule of Automatic Discharge | p. 145 |
| American Law: Coverage is Suspended and Voidable | p. 148 |
| Which Rule Is to Be Preferred? Preliminary Considerations | p. 150 |
| Warranty and Promise | p. 151 |
| Warranty and Condition | p. 151 |
| Conclusion: The Voidability Rule | p. 152 |
| Mitigation Doctrines | p. 154 |
| Cure of the Breach | p. 154 |
| Cause | p. 155 |
| Materiality: Affirmative Versus Promissory Warranties | p. 155 |
| Judicial Construction | p. 157 |
| "Held Covered" Clauses | p. 157 |
| Waiver | p. 158 |
| Case Study: The Warranty of Seaworthiness | p. 159 |
| The Definition of the Duty | p. 160 |
| Burden of Proof | p. 161 |
| The Scope of the Duty | p. 163 |
| English Law | p. 163 |
| American Law | p. 166 |
| Time Policies--The "American" Rule | p. 167 |
| Conclusion | p. 170 |
| Conclusions | p. 172 |
| Introduction | p. 172 |
| The Source of the Divergence of the Law | p. 172 |
| The Causes of Divergence | p. 173 |
| The Extent of Divergence | p. 175 |
| The Duty of Utmost Good Faith | p. 176 |
| Warranties | p. 177 |
| Restoring Uniformity | p. 178 |
| Bibliography | p. 179 |
| Index | p. 185 |
| Table of Contents provided by Syndetics. All Rights Reserved. |
ISBN: 9780870335228
ISBN-10: 0870335227
Audience:
General
Format:
Hardcover
Language:
English
Number Of Pages: 232
Published: 1st September 1999
Publisher: CORNELL MARITIME PR
Dimensions (cm): 23.571 x 15.85
x 1.93
Weight (kg): 0.499
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