1. 6. Duty of disclosure and due care
Trine-Lise Wilhelmsen

2. Outline Introduction The relationship with ICA Duty of disclosure
Alteration of risk
Safety regulation
Casualties caused by the assured
Notification and salvage measures
Identification
Marine insurance

3. 6.1. Introduction Subjective (duty) vs objective (scope) rules
The conflict of interest
Two different kinds of duties
The sanctioning system
Marine insurance

4. Duty of disclosure and due care
Insurer’s
interest
Assured’s
interest
Maximum
information
Risk
control
Financial
coverage
Duties
Duties connected
to the risk
Due care
Duty of
Dis
closure
Alteration
Of risk
Safety
regulation
Causing
the loss
Notify/
salvage
Marine insurance

5. 6.2 The relationship with ICA
NMIP:
Departs from ICA 1989
Follows previous NMIP/ICA 1930
But:
Warranty approach (classification)
Concept of unseaworthiness deleted (2007)
Marine insurance

6. 6.2 The relationship with ICA
CICG
Follows ICA
But:
Stricter safety-regulation for international transport
Suspension of insurance in case of delay
Gard
Departs from ICA
Closer to MIA
§ 16. Suspension of the insurance
This insurance shall be suspended if the goods are delayed in one place for more than 15 days due to circumstances within the control of the Assured. The insurance shall again become operative from the time physical measures are implemented to start or resume the transit.
Marine insurance

7. 6.3. Duty of disclosure Two main systems: NMIP/Gard and CICG/ICA
The problems to be discussed:
The extent of the duty of disclosure
The time of the duty of disclosure
Who has the duty of disclosure
The sanctioning system
Marine insurance

8. 6.3.1 The extent of the duty of disclosure
NMIP § 3-1/Gard 6: All relevant information
= Active duty of disclosure
The concept of relevant information
CICG § 12/ICA § 4-1: Answering questions
Passive duty of disclosure
NMIP § 3-1. Scope of the duty of disclosure
1. The person effecting the insurance shall, at the time the contract is concluded, make full and correct disclosure of all circum­stances that are material to the insurer when deciding whether and on what conditions he is prepared to accept the insurance.
If the person effecting the insurance subsequently becomes aware that he has given incorrect or incomplete information regarding the risk, he shall without undue delay notify the insurer.
CICG § 12. Duty of disclosure of the person effecting the insurance
In connection with the conclusion or renewal of the insurance contract, the Insurer may ask for information concerning circumstances which may have a bearing on his assessment of the risk. The person effecting the insurance shall reply fully and correctly to the Insurer's inquiries. The person effecting the insurance shall also on his own initiative inform the Insurer of special circumstances which he must understand have a substantial bearing on the Insurer's assessment of the risk.
2 ledd – as NMIP
Marine insurance

9. 6.3.2 The time of the duty of disclosure
NMIP § 3-1, CICG § 12, Gard 6
Concerns
Time of the factual circumstances
Time of good faith
Good faith: When the contract is entered into
Factual circumstances: Duty to make corrections
Marine insurance

10. Time of the duty of disclosure
Factual circumstances
Good faith
When contract is entered
All the time
But: Only for factual circumstances at
Contract point
Marine insurance

11. 6.3.3 Who has a duty of disclosure
Starting point:
The person effecting the insurance, NMIP § 3-1,1, CICG § 12, 1
The member, Gard 6
NMIP § 8-2/CICG § 13: Special rule for the assured
Identification with agents/ brokers
NMIP § 8-2. Duty of disclosure
1. The rules contained in chapter 3, section 1, shall apply correspondingly to anyone who has the status of assured under § 8-1, provided that he is aware of the fact that he is named in the policy.
The insurer may not invoke a breach of the assured’s duty of disclosure under subparagraph 1 above against other assureds, unless the conditions for identification under § 3-36 and § 3-37 are met.
§ 13. Duty of disclosure of a third party
If this insurance comprises the interest of a third party, and if the third party knows that the insurance has been or will be effected, the third party shall have the same duty of disclosure as the person effecting the insurance, cf. § 12.
Marine insurance

12. 6.3.4 The sanctioning system
NMIP/CICG/ICA
Double system: No liability/cancellation
Depending on the degree of fault:
Fraud
Negligence
Innocent breach
Gard: Sanction connected to the significance of the breach
Marine insurance

13. 6.3.4 Sanctions, NMIP Fraud; NMIP § 3-2.
The contract is not binding
Right to cancel all other contracts
Negligent or intentional breaches, § 3-3:
Not binding/ no liability
cancellation according to the circumstances
Innocent breach, § 3-4
Cancellation
§ 3-2. Fraud
1.If the person effecting the insurance has fraudulently failed to fulfil his duty of disclosure, the contract is not binding on the insurer.
2.The insurer may also cancel other insurance contracts he has with the person effecting the insurance by giving fourteen days’ notice.
§ 3-3. Other failure to fulfil the duty of disclosure
1.If the person effecting the insurance has, at the time the contract is concluded, in any other way failed to fulfil his duty of disclosure, and it must be assumed that the insurer would not have accepted the insurance if the person effecting the insurance had made such disclosure as it was his duty to make, the contract is not binding on the insurer.
2.If it must be assumed that the insurer would have accepted the insurance, but on other conditions, he shall only be liable to the extent that it is proved that the loss is not attributable to such circumstances as the person effecting the insurance should have disclosed. Liability is limited in the same manner if the person effecting the insurance has been in breach of the duty of disclosure after the contract was concluded, unless it is proved that the loss occurred before the person effecting the insurance was able to correct the information supplied by him.
3.In the cases referred to in subparagraph 2, the insurer may cancel the insurance by giving fourteen days’ notice.
Marine insurance

14. 6.3.4 Sanctions, CICG/ICA Fraud, ICA § 4-2 and § 4-3:
No liability
Termination
More than a little to blame, ICA § 4-2 and § 4-3
Deductions in liability
Cancellation, 14 days notice
Less than a little to blame
Section 4-2.1) (reduction of the company's liability when the obligation to provide information has been neglected)
If the policyholder has fraudulently neglected the obligation to provide information according to Section 4-1, and an insurance event has occurred, the company is not liable to the policyholder.
If the policyholder has otherwise neglected his obligation to provide information and his or her fault in that connection is more than just slight, the company's liability to the policyholder can be reduced or cease.
When a decision is taken according to the second paragraph, regard shall be had7) to the importance of the error to the company's4) assessment of the risk, the degree of blame, the sequence of events and other circumstances.
Section 4-3.1) (right of the company to cancel insurance when it has received incorrect information)
If the company learns that the information it has received concerning the risk is incorrect or incomplete in any significant respect, it can cancel the insurance with 14 days' notice. The second paragraph of Section 3-3 applies correspondingly. If the policyholder has acted fraudulently, the company can however cancel this and other insurance contracts it has with the policyholder with immediate effect.
Marine insurance

15. 6.3.4 Conditions to invoke sanctions
Common for NMIP and CICG/ICA
Conditions to invoke the sanctions, NMIP § 3-5 and § 3-6, ICA § 4-4;
No knowledge
Decisive risk factor
Notification
§ 3-5. Cases where the insurer may not invoke breach of the duty of disclosure
The insurer may not plead that incorrect or incomplete information has been given if, at the time when the information should have been given, he knew or ought to have known of the matter. Nor may he invoke § 3-3 and § 3-4 if the circumstances about which incorrect or incomplete information was given have ceased to be material to him.
§ 3-6. Duty of the insurer to give notice
If the insurer becomes aware of the fact that incorrect or incomplete information has been given, he shall, without undue delay and in writing, notify the person effecting the insurance of the extent to which he intends to invoke § 3-2, § 3-3 and § 3-4. If he fails to do so, he forfeits his right to invoke those provisions.
Marine insurance

16. 6.3.4 Sanctions, Gard Rule 6.2 and 6.3 ”Neglected” his duty
Non acceptance of entrance with full knowledge: No liability
Acceptance on other conditions: cover depends on these conditions
Marine insurance

17. 6.4 Alteration of risk Overview NMIP: General regulation
NMIP: Special regulation
Gard: General regulation
Gard: Special regulation
Marine insurance

18. 6.4.1 Overview CICG NMIP and Gard follows the ICA General regulation
Not very practical
NMIP and Gard
Sanctions as duty of disclosure
Special regulation
Marine insurance

19. 6.4.2. NMIP: general regulation
NMIP § 3-8 to § 3-13
The concept of alteration of risk, NMIP § 3-8, 1
Shall be deemed as alteration of risk, NMIP § 3-8, 2 – Change of
State of registration
Technical/maritime operator
Classification society
§ 3-8. Alteration of the risk
1. An alteration of the risk occurs when there is a change in the circum­stances which, according to the contract, are to form the basis of the insurance, and the risk is thereby altered contrary to the implied conditions of the contract.
2. A change of the State of registration, of the manager of the ship or of the company which is responsible for the technical/maritime operation of the ship shall be deemed to be an alteration of the risk as defined by subparagraph 1. The same applies to a change of classification society.
Marine insurance

20. 6.4.2 NMIP: general regulation
Alteration of risk caused by the assured:
No liability, § 3-9
Cancellation, § 3-10
Alteration of risk not caused by the assured;
Notification, § 3-11
If not, § 3-9 applies
+ Cancellation, § 3-11
§ 3-9. Alteration of the risk caused or agreed to by the assured
1. If, after the conclusion of the contract, the assured has intentionally caused or agreed to an alteration of the risk, the insurer is free from liability, provided that it may be assumed that he would not have accepted the insurance if, at the time the contract was concluded, he had known that the alteration would take place.
2. If it may be assumed that the insurer would have accepted the insurance, but on other conditions, he is only liable to the extent that the loss is proved not to be attributable to the alteration of the risk.
§ Right of the insurer to cancel the insurance
If an alteration of the risk occurs, the insurer may cancel the insurance by giving fourteen days’ notice.
§ Duty of the assured to give notice
If the assured becomes aware that an alteration of the risk will take place or has taken place, he shall, without undue delay, notify the insurer. If the assured, without justifiable reason, fails to do so, the rule in § 3-9 shall apply, even if the alteration was not caused by him or took place without his consent, and the insurer may cancel the insurance by giving fourteen days’ notice.
Marine insurance

21. 6.4.3 NMIP: The special regulation
Classification
Change of ownership
Illegal activities
Trading limits
Marine insurance

22. 6.4.3.1 Classification, NMIP § 3-14
Expressed as a warranty:
The ship shall be classified when the insurance commences
Loss of class = the insurance terminates regardless of
causation
fault
Similar regulation in many other countries
§ Loss of class
1. When the insurance commences the ship shall be classed with a classification society approved by the insurer.
2. The insurance terminates in the event of loss of class, unless the insurer explicitly consents to a continuation of the insurance contract. If the ship is under way when the class is lost, the insurance cover shall nevertheless continue until the ship arrives at the nearest safe port in accordance with the insurer’s instructions.
3. Loss of class occurs where the assured, or someone on his behalf, requests that the class be cancelled, or where the class is suspended or withdrawn for reasons other than a casualty.
4. § 3-8, subparagraph 2, second sentence, shall apply to a change of classification society.
Marine insurance

23. 6.4.3.2 Change of ownership NMIP § 3-21
The insurance terminates immediately
Reason: the importance of ownership
Change of ownership # change of shareholder structure
Marine insurance

24. Illegal activities
Starting point: No liability for losses caused by illegal activities unless the assured in good faith, NMIP § 3-16 , 1
If the ship is used primarily for illegal activities, the insurance terminates, § 3-16, 3.
§ Illegal activities
1. The insurer is not liable for loss which results from the ship being used for illegal purposes, unless the assured neither knew nor ought to have known of the facts at such a time that it would have been possible for him to intervene.
2. If the assured fails to intervene without undue delay after becoming aware of the facts, the insurer may cancel the insurance by giving fourteen days’ notice.
3. The insurance terminates if the ship, with the consent of the assured, is used primarily for the furtherance of illegal purposes.
Marine insurance

25. 6.4.3.4 Trading limits NMIP § 3-15;
Ordinary areas,
conditional areas and
excluded areas
The areas defined in enclosure to the Plan
Marine insurance

26. 6.4.3.4 Trading limits Conditional areas, § 3-15, 2;
sailing subject to additional premium.
Sanction extra deductible
Excluded areas, § 3-15, 3;
Insurance ceases to be in effect until the ship leaves the excluded area
§ Trading limits
1. The ordinary trading area under the insurance comprises all waters, subject to the limitations laid down in the Appendix to the Plan as regards conditional and excluded areas. The person effecting the insurance shall notify the insurer before the ship proceeds beyond the ordinary trading limit.
2. The ship may continue to sail in the conditional trading areas, the insurer may require an additional premium and may also stipulate other conditions. If damage occurs while the ship is in a conditional area with the consent of the assured and without notice having been given, the claim shall be settled subject to a deduction of one fourth, maximum USD 175,000. The provision in § shall apply correspondingly.
3. If the ship proceeds into an excluded trading area, the insurance ceases to be in effect, unless the insurer has given permission in advance, or the infringement was not the result of an intentional act by the master of the ship. If the ship, prior to expiry of the insurance period, leaves the excluded area, the insurance shall again come into effect. The provision in § 3-12, subparagraph 2, shall apply correspondingly.
Marine insurance

27. 6.4.4 Gard: General regulation
Rule 7
7.1: Duty to disclose alteration of risk
7.2: Alteration of risk intentionally caused
Non acceptance if known: no liability if causation
Acceptance on other conditions: covered if covered under these
Marine insurance

28. 6.4.5 Gard: Classification and certification
Rule 8.1: Conditions for insurance:
Classification
Notification of damage
Comply with classification requirements
Notification if change of classification Society
Compliance with all safety regulations
Rule 8.3: Sanction
Coverage suspended when conditions not fulfilled
Marine insurance

29. 6.5. Safety regulation Overview NMIP: Safety regulation NMIP: Sanction
NMIP: Ships laid up
CICG/ICA
Marine insurance

30. 6.5.1 Overview Scandinavian invention Not used in other systems
Anglo American parallel: warranties (cf. Gard 8.1 cf. 8.3)
Powerful weapon for insurer
The traditional system: seaworthiness and safety regulations as parallel rules
Marine insurance

31. 6.5.2 NMIP: Safety regulation
The concept of a safety regulation, § 3-22
May be issued by
public authorities,
the insurer
or the classification society.
Includes
periodic surveys, § 3-22,2
Ice class regulation prescribed by the class, § 3-22, 3
§ Safety regulations
1. A safety regulation is a rule concerning measures for the prevention of loss, issued by public authorities, stipulated in the insurance contract, prescribed by the insurer pursuant to the insurance contract, or issued by the classification society.
2. Periodic surveys required by public authorities or the classification society constitute a safety regulation under subparagraph 1. Such surveys shall be carried out before expiry of the prescribed time-limit.
3. The rules prescribed by the classification society regarding ice class constitute a safety regulation under subparagraph 1.
Marine insurance

32. 6.5.2 NMIP: Sanction Sanction 1; No liability § 3-25 Fault, § 3-25, 1
Causation, § 3-25,1
Burden of proof shifted, § 3-25,1
Breach of special safety regulation results in extended identification, NMIP § 3-25,2
§ Infringement of safety regulations
1. If a safety regulation has been infringed, the insurer shall only be liable to the extent that it is proved that the loss is not a consequence of the infringement, or that the assured was not responsible for the infringement. However, the insurer may not invoke this rule where the assured is the master of the ship or a member of the crew and the infringement is committed in connection with his service as a seaman.
2. If the infringement relates to a special safety regulation laid down in the insurance contract, negligence by anyone whose duty it is on behalf of the assured to comply with the regulation or to ensure that it is complied with shall be deemed equivalent to negligence by the assured himself. The same applies if periodic surveys are not carried out as required by § 3-22, subparagraph 2.
Marine insurance

33. 6.5.3 NMIP: Sanction Sanction 2; Cancellation, § 3-27 14 days notice
(a): Not in compliance with a technical or operational safety regulation
(b) safety regulation of material significance
§ Right of the insurer to cancel the insurance
The insurer may cancel the insurance by giving fourteen days’ notice, but with effect at the earliest on arrival of the ship at the nearest safe port, in accordance with the insurer’s instructions, if:
(a) the ship, by reason of unsuitable construction, a defect, a casualty or similar circumstances, is not in compliance with a technical or operational safety regulation,
(b) a safety regulation of material significance has been infringed, intentionally or through gross negligence, by the assured or by someone whose duty it is on his behalf to comply with the regulation or ensure that it is complied with.
Marine insurance

34. 6.5.3 NMIP: Ships laid up NMIP § 3-26: Laid up plan required
No lay up plan drawn up, or laid up plan not followed: The provisions for breach of safety regulations is followed
§ Ships laid up
For ships which are to be laid up, a lay-up plan shall be drawn up which shall be submitted to the insurer for his approval. If this has not been done, or the lay-up plan has not been followed while the ship is laid up, § 3-25, subparagraph 1, shall apply correspondingly.
Marine insurance

35. 6.5.4 CICG/ICA: Concept of safety regulation
National transport: § :
§ 22 – unsuitable means of transport
§ 23 – marking and packing of goods
§ 24 – Goods carried in thermo regulated means of transport
CICG § 21. General rules
The safety regulations set out in §§ 22 to 24 and the regulations otherwise laid down by the Insurer and which are set out in the Policy shall apply to this insurance. …
§ 22. Unsuitable means of transport
The Assured shall ensure that the goods are carried by a means of transport or in a container that is suitable for the transit.
§ 23. Marking and packing of goods
The following information shall be clearly indicated on each package:
1.The name and address of the shipper and the consignee.
2.Which side of the package is "up" or "down".
3.The degree of danger of hazardous goods, indicated by international symbols.
4.The centre of gravity of the package.
5.Lifting instructions.
Marine insurance

36. 6.5.4 CICG/ICA: Concept of safety regulation
International transport: § :
As above
+ “all regulations and injunctions concerning measures for the prevention of loss issued by public authorities”
In the case of international transits, moreover, all regulations and injunctions concerning measures for the prevention of loss, issued by public authorities, shall be regarded as safety regulations. Section 1-2 (e) of the ICA has been departed from, cf. Section 1-3, second paragraph, letter (e) of the Act.
Marine insurance

37. 6.5.5 CICG/ICA: Sanction § 21.2: No liability (# ICA) provided
Causation
Fault: “Cannot be imputed” (# ICA)
Burden of proof: shifted
CICG § 21.2
If a safety regulation is infringed, the Insurer shall only be liable to the extent that it is proved that the loss is not a consequence of the infringement or that the infringement cannot be imputed to the Assured.
Marine insurance

38. 6.6 Casualties caused by the assured
Overview
NMIP
CICG/ICA
Marine insurance

39. 6.6.1 Overview The NMIP and CICG/ICA: distinction between
Intent
Gross negligence
Ordinary negligence
Gard: Rule 71: willful misconduct
Marine insurance

40. 6.6.2 Caused by the assured, NMIP
Intent, NMIP § 3-32 and § 3-34
Sanction 1: No liability, NMIP § 3-32
Sanction 2:
Termination of this contract without notice, § 3-34, 1.
Termination of other contracts by giving 14 days notice, § 3-34, 2
§ Intent
If the assured has intentionally brought about the casualty, he has no claim against the insurer.
§ Right of the insurer to cancel the insurance
1. If the assured has intentionally brought about or tried to bring about a casualty, the insurer may cancel the insurance without notice. If the assured has caused a casualty through gross negligence, the insurer may cancel the insurance by giving fourteen days’ notice.
2. If the assured has intentionally brought about the casualty, the insurer may cancel other insurances with the assured by giving fourteen days’ notice.
Marine insurance

41. 6.6.2 Caused by the assured, NMIP
Gross negligence:
Sanction 1; NMIP § 3-33: % liability according to
the degree of fault and
other circumstances,
Sanction 2; NMIP § 3-34, 1, 2: Termination, 14 days notice
Ordinary negligence: No sanction
§ Gross negligence
If the assured has brought about the casualty through gross negligence, any liability of the insurer shall be determined based on the degree of fault and circumstances generally.
§ Right of the insurer to cancel the insurance
1. If the assured has intentionally brought about or tried to bring about a casualty, the insurer may cancel the insurance without notice. If the assured has caused a casualty through gross negligence, the insurer may cancel the insurance by giving fourteen days’ notice.
Marine insurance

42. 6.6.3 Caused by the assured, CICG
ICA § 4-9
Intent
– no liability
Without fraud: part liability possible
Gross negligence – reduction in liability
Ordinary negligence – full liability
ICA Section 4-9.1) (insurance events caused by insured parties)
If the insured party deliberately caused the insurance event, the company is not liable. If no fraudulence has been shown, the company can nevertheless have partial liability imposed on it. …
If in cases of other insurance than liability insurance the insured party has caused the insurance event through gross negligence, the company's liability can be reduced or cease. When the decision is taken, importance shall be attached to the degree of blame, the sequence of events leading to the damage, whether the insured party was in a self-inflicted intoxicated condition, and the other circumstances.
The company can not adduce that the insured party caused the insurance event owing to other negligence than gross negligence.
Marine insurance

43. 6.7 Notification and salvage measures
Duty to notify
Duty to salvage
Sanction
Marine insurance

44. 6.7.1 Duty to notify NMIP § 3-29/ CICG § 25.2/ Gard rule 82 1 (a):
if loss has occurred or threatens to occur
Without undue delay/promptly
NMIP § 3-29/ CICG § 25: also
keep informed
+ notify of maritime inquiry/surveys
§ Duty of the assured to notify the insurer of a casualty
1. If a casualty threatens to occur or has occurred, the assured shall, without undue delay, notify the insurer and keep him informed about further developments.
The assured and the master are required to notify the insurer of maritime inquiries and surveys which are to be held in connection with the casualty.
CICG 25.2
If loss or damage has occurred, the Assured shall without undue delay notify the Insurer. He shall keep the Insurer informed of further developments, and notify him of any maritime inquiry or surveys at which it might be important for the Insurer to be represented.
Marine insurance

45. 6.7.2 Duty to salvage NMIP § 3-31/CICG § 25.1/Gard rule 82.1 (b):
Reasonable measures to avert/minimize a loss
NMIP § 3-31/CICG § 25.1
Follow insurer’s instructions
NMIP § Duty of the assured to avert and minimise loss
If a casualty threatens to occur or has occurred, the assured shall do what may reasonably be expected of him in order to avert or minimise the loss. If possible, he shall consult the insurer before taking any action.
CICG § 25. Duty of the Assured to minimise losses
If there is imminent danger that loss or damage will occur, or has occurred, the Assured shall do what may reasonably be expected of him to avert or minimise the loss. If the Insurer issues specific instructions, he shall comply with them, unless he must understand that they have been issued on the basis of incorrect or incomplete information about the actual situation.
Marine insurance

46. 6.7.3 The sanction NMIP § 3-31/CICG § 26: No liability
if fault (intent or gross negligence) and
only for losses that would otherwise not have been incurred
Gard rule 82.2: Gard may
reject or reduce any claim
Claim reimbursement
NMIP § Consequences of the assured neglecting his duties
1. If the assured, intentionally or through gross negligence, fails to fulfil his duties under § 3-29 or § 3-30, the insurer shall not be liable for a greater loss than that for which he would have been liable if the duty had been fulfilled.
The same applies if the master neglects his duties under § 3-
CICG § 26. The Insurer's liability if the Assured neglects his duties
If the Assured has wilfully or through gross negligence failed to fulfil his duties pursuant to § 25, the Insurer shall not be liable for a greater loss than that for which it may be assumed he would have been liable if the duty had been fulfilled.
Marine insurance

47. 6.8 Identification, Overview
The issue of identification
The need for rules
The different types of identification problems:
the person effecting insurance and his helpers
the assured and his helpers
the assured and the person effecting the insurance
the assured and co-insured/co-owner
Marine insurance

48. Identification between person effecting the insurance and his helpers
The person
effecting ins.
The insurer
breach of the
duty of disclosure
Broker/
Agent
Marine insurance

49. IDENTIFICATION BETWEEN THE ASSURED AND HIS HELPERS
Insurer
Breach of duty
of due care
”Helpers”
Marine insurance

50. Identification between the assured and the person effecting the insurance
Insurer
Breach of duty
of disclosure
Person
effecting
insurance
Marine insurance

51. Identification between assured and co assured/co owner
Insurer
Breach of duty
of due care
Co-assured
Co-owner
Marine insurance

52. 6.8.1 Person effecting the insurance and his helpers
Full identification
No express provision in the conditions.
Follows from ordinary contract law
Marine insurance

53. Identification between person effecting the insurance and his helpers
No liability
The person
effecting ins.
The insurer
breach of the
duty of disclosure
Identification
Broker/
Agent
Marine insurance

54. 6.8.2. Between the assured and his helpers, NMIP
Starting point, § 3-36, 2: Identification if helper is
An individual/organization
With authority delegated from the assured
Concerning functions of material significance for the insurance
And made a mistake under the performance of these functions
If the master/crew should be in the mentioned position, the same holds for these
§ Identification of the assured with his servants
2. The insurer may invoke against the assured faults and negligence committed by any organisation or individual to whom the assured has delegated decision-making authority concerning functions of material significance for the insurance, provided that the fault or negligence occurs in connection with the performance of those functions.
Marine insurance

55. IDENTIFICATION BETWEEN THE ASSURED AND HIS HELPERS, NMIP
No liability
Assured
Insurer
Breach of duty
of due care
Identification
Helper as
defined § 36.2
Marine insurance

56. 6.8.2 Between the assured and his helpers, NMIP
No identification in other circumstances
Includes master/crew in connection with their service as seamen, NMIP § 3-36, 1
However: Specific provisions, i.e. in NMIP § 3-25,2
§ Identification of the assured with his servants
1. The insurer may not invoke against the assured faults or negligence committed by the ship’s master or crew in connection with their service as seamen.
2. The insurer may invoke against the assured faults and negligence committed by any organisation or individual to whom the assured has delegated decision-making authority concerning functions of material significance for the insurance, provided that the fault or negligence occurs in connection with the performance of those functions.
Marine insurance

57. IDENTIFICATION BETWEEN THE ASSURED AND HIS HELPERS, NMIP
Liability
Assured
Insurer
Breach of duty
of due care
No Identification
Master/crew,
§ 36, 2
Marine insurance

58. 6.8.2 Between the assured and his helpers, CICG
§ 10, 1 (a): management personnel employed by one of the assured parties responsible for the transport of the goods
§ 10:2: extended identification in case of breach of safety regulation
§ 10. Identification
The Insurer may, in respect of the Assured, plead that the right to compensation for loss of or damage to goods has been forfeited wholly or partly as a consequence of an act or an omission by:
a) Management personnel employed by one of the Assured parties responsible for the transport of the goods.
…..
In the event of a breach of the safety regulations in §§ 22, 23 or 24, or of a safety regulation laid down by the Insurer pursuant to § 21 and incorporated in the Policy, the Insurer may also invoke an act or omission by other persons who have been engaged to organize the transport.
Marine insurance

59. IDENTIFICATION BETWEEN THE ASSURED AND HIS HELPERS, CICG
No liability
Assured
Insurer
Breach of duty
of due care
Identification
Own/co-assured’s
Management
responsible
for transport
Marine insurance

60. 6.8.3 The assured and the person effecting, NMIP
NMIP § 3-38: Full identification
Holds also if the person effecting the insurance uses a helper;
i.e. Identification in two steps
§ Identification of the assured with the person effecting the insurance
The insurer may invoke against the assured faults or negligence committed by the person effecting the insurance.
Marine insurance

61. Identification between the assured and the person effecting the insurance
No liability
Assured
Insurer
Breach of duty
of disclosure
Identification
Person
effecting
insurance
Marine insurance

62. Identification between the assured, the person effecting the insurance, and the broker
No liability
Assured
Insurer
Identification
Breach of duty
of disclosure
Person
effecting
insurance
Identification
Broker
Marine insurance

63. 6.8.3 The assured and the person effecting, CICG
§ 10.1 (b)
Person effecting the insurance and former owner of the goods
Either owner at the time of the omission or
Goods were in his charge
§ 10. Identification
The Insurer may, in respect of the Assured, plead that the right to compensation for loss of or damage to goods has been forfeited wholly or partly as a consequence of an act or an omission by:
a) Management personnel employed by one of the Assured parties responsible for
the transport of the goods.
b)The person effecting the insurance or former owner of the goods. It is not a condition that the person in question was owner at the time of the omission, provided that the goods were in his charge or in the charge of a person acting on his behalf.
In the event of a breach of the safety regulations in §§ 22, 23 or 24, or of a safety regulation laid down by the Insurer pursuant to § 21 and incorporated in the Policy, the Insurer may also invoke an act or omission by other persons who have been engaged to organize the transport.
Marine insurance

64. 6.8.4 Assured and co-insured/co-owner, NMIP
NMIP § 3-37: Starting point: No identification
Exception if the co-insured/co-owner has overall decision authority for the operation of the ship
§ Identification of two or more assureds with each other and of the assured with a co-owner
The insurer may not invoke against the assured faults or negligence committed by another assured or a co-owner of the insured ship, or anyone with whom they may be identified under § 3-36, subparagraph 2, unless the relevant assured or co-owner has overall decision-making authority for the operation of the ship.
Marine insurance

65. Identification between assured and co assured/co owner
Liability
Assured
Insurer
Breach of duty
of due care
No Identification
Co-assured
Co-owner
Marine insurance

66. Identification between assured and co assured/co owner
No Liability
Assured
Insurer
Breach of duty
of due care
Identification
Co-assured
Co-owner
If overall decision authority
Marine insurance