5-9 Flashcards
Nature of the Marine Insurance Contract
Nature and Terms of a Marine Insurance Contract
A marine insurance contract is a legal agreement between the insured and the insurer, whereby the insurer agrees to indemnify the insured for losses arising from maritime perils, subject to the terms and conditions of the contract. It is governed by principles of contract law and specific provisions under statutes like the Indian Marine Insurance Act, 1963.
Nature of the Marine Insurance Contract
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Contract of Indemnity
- Marine insurance is primarily a contract of indemnity, meaning the insurer compensates the insured only to the extent of the actual loss suffered.
- The insured cannot make a profit from the insurance policy.
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Aleatory Contract
- It is contingent upon the occurrence of uncertain events (e.g., storms, piracy, collisions). If no loss occurs, the insurer owes nothing.
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Uberrimae Fidei (Utmost Good Faith)
- Both parties must disclose all material facts that could influence the insurer’s decision to accept the risk or determine the premium. Non-disclosure or misrepresentation can render the policy void.
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Unilateral Contract
- Once the premium is paid, the obligation rests primarily on the insurer to fulfill the promise of indemnity upon the occurrence of the insured event.
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Contract of Adhesion
- The terms are generally set by the insurer, and the insured must adhere to them without negotiation. This makes it crucial for the insured to understand the terms fully.
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Subject to Maritime Law
- The contract is influenced by maritime laws and international conventions regulating shipping and insurance practices.
Nature and terms of marine insurance contract
Terms of a Marine Insurance Contract
The terms of a marine insurance contract are usually specified in the policy and can be categorized into express terms and implied terms:
1. Express Terms
These are explicitly stated in the insurance policy and include:
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Description of the Subject Matter
- Clearly identifies what is insured (e.g., ship, cargo, freight).
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Coverage Scope
- Specifies the risks covered, such as perils of the sea, fire, theft, piracy, or jettison.
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Policy Type
- Defines whether the policy is voyage-based, time-based, or mixed.
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Sum Insured and Premium
- Details the value of the insured subject and the premium payable.
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Duration of Risk
- States the period of coverage or the start and end points of a voyage.
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Exclusions
- Lists risks not covered, such as war risks, wilful misconduct, or inherent vice (defects in the insured goods).
2. Implied Terms
Certain terms are not explicitly stated but are implied by law or custom, as outlined in the Indian Marine Insurance Act, 1963:
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Seaworthiness
- The ship must be seaworthy at the commencement of the voyage.
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Legality
- The voyage or purpose of the ship must not involve illegal activities.
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No Deviation
- The insured vessel must follow the agreed route unless deviation is necessary for safety or justifiable circumstances.
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Loss Minimization
- The insured must take reasonable steps to prevent or minimize loss if a peril arises.
Key Features in the Terms
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Proximate Cause
- The insurer compensates only if the loss is proximately caused by an insured peril. For example, damage due to a storm would be covered, but wear and tear would not.
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Subrogation Clause
- After compensating the insured, the insurer can recover the loss from responsible third parties.
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Contribution Clause
- If multiple insurers cover the same risk, they share the liability proportionately.
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Termination Clause
- Specifies conditions under which the policy can be terminated by either party.
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Claims Procedure
- Outlines how the insured must notify the insurer and substantiate claims for compensation.
SOLAS Convention (International Convention for the Safety of Life at Sea)
Objective: Establishes minimum safety standards for the construction, equipment, and operation of ships.
Key Features:
Safety equipment requirements (e.g., life-saving appliances, fire safety systems).
Standards for ship structure and stability.
Emergency preparedness protocols (e.g., lifeboats and evacuation drills).
Mandates the carriage of navigation and communication systems.
India’s Role: India has ratified SOLAS and incorporated its provisions through the Merchant Shipping Act, 1958.
ISM Code (International Safety Management Code)
made mandatory under SOLAS.
Objective: Promotes the safe operation of ships and pollution prevention through effective management systems.
Key Features:
* Requires ship operators to implement a Safety Management System (SMS).
* Ensures compliance with safety and environmental protection rules.
* Focuses on risk assessment and emergency response.
Application: Applies to all commercial vessels over 500 GT.
India’s Role: Indian flagged vessels and ship operators must comply with the ISM Code, monitored by the Directorate General of Shipping (DGS).
ISPS Code (International Ship and Port Facility Security Code)
Adoption: 2004; introduced as an amendment to SOLAS after 9/11 to enhance maritime security.
Objective: Establishes measures to detect and deter threats to ships and port facilities.
Key Features:
* Risk assessment and security protocols for ships and port facilities.
* Designation of Security Officers (Ship Security Officer, Port Facility Security Officer).
* Use of Ship Security Alert Systems (SSAS).
* Collaboration between ships, ports, and authorities to respond to security threats.
India’s Role: Indian ports and vessels are required to comply with ISPS standards under the oversight of DGS.
STCW Convention (International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers)
Objective: Sets minimum standards for the training, certification, and watchkeeping of seafarers to ensure maritime safety.
Key Features:
* Standards for crew competence and certification.
* Guidelines for onboard responsibilities (e.g., navigation, engineering).
* Mandatory training in safety, security, and environmental awareness.
* Periodic training and revalidation for seafarers.
India’s Role: India, as a leading supplier of seafarers globally, strictly adheres to STCW through the Merchant Shipping Act and training institutions approved by DGS.
Law of the Seas Convention LOSC for marine protection
The LOSC gives financial and technical preference to developing States. This inclusive practice ensures that all States can complete and share periodic scientific reports on their marine environments and contribute to the development of pollution remedies, States can cooperate either directly or through competent international organizations
The LOSC maintains a spirit of non-interference with State sovereignty.
- general obligations to
- 1) protect and preserve the marine environment
- 2) control pollution of the marine environment from any source;
- 3) prevent the introduction of alien species to marine environments;6 and
- 4) ensure that pollution from one State does not spread beyond the areas where they exercise sovereign rights.
TYPES Of pollution under LOSC
(1) land-based and coastal activities; (2) continental-shelf drilling;
(3) potential seabed mining;
(4) ocean dumping;
(5) vessel- source pollution; and
(6) pollution from or through the atmosphere.
International Convention for the Prevention of Pollution from Ships (MARPOL)
to cover pollution by oil, chemicals, harmful substances in packaged form, sewage, and garbage
the annexes cover=
- regualtions for pollutions by OIL
- control of pollution by Noxious liquid substances in bulk
- harmful substances carried by sea in packaged form
- pollution by sewage from ships
- pollution by garbage from ships
- air pollution from ships
Compliance Mechanisms under MARPOL
a. Flag State Obligations
Each state must ensure ships flying its flag or registered under it comply with MARPOL requirements.
This includes:
* Regular inspections of vessels.
* Issuance of International Certificates (e.g., International Oil Pollution Prevention Certificate).
* Adoption of domestic laws mirroring MARPOL provisions.
b. Port State Control (PSC)
Port states can inspect foreign ships in their ports to ensure compliance with MARPOL.
Inspections include:
* Checking certification.
* Assessing pollution prevention equipment.
* Verifying compliance with operational standards (e.g., oil record books, garbage management plans).
c. Coastal State Obligations
Coastal states ensure that ships operating within their territorial waters or exclusive economic zones (EEZs) do not violate MARPOL provisions.
They monitor, report, and act on pollution incidents.
d. Shipowners and Operators
Compliance requires:
* Proper maintenance of pollution prevention equipment.
* Adherence to operational standards (e.g., discharge restrictions for oil, garbage, sewage, air pollution).
* Maintaining accurate records.
Jurisdictions of States under MARPOL
a. Flag State Jurisdiction
Flag states have primary jurisdiction over vessels flying their flag.
* They ensure that ships are constructed, equipped, and operated in compliance with MARPOL.
* If a violation occurs outside a flag state’s waters, it has the right to investigate and penalize the ship.
b. Port State Jurisdiction
When foreign ships enter a port, the port state can inspect and detain them for violations of MARPOL.
Detention may occur if:
* The ship poses a threat to the environment.
* Serious non-compliance is discovered.
c. Coastal State Jurisdiction
Coastal states have jurisdiction within:
Territorial Waters: Up to 12 nautical miles, where states can enforce MARPOL.
* EEZ: Up to 200 nautical miles, where states can monitor and act on pollution incidents.
* They can take preventive actions and impose penalties for violations affecting their waters.
d. International Jurisdiction
When pollution occurs on the high seas (beyond national jurisdictions), enforcement relies on:
Cooperation between flag states.
Regional agreements for monitoring and response.
Enforcement Tools and Sanctions
Inspections and Monitoring
* Port states and flag states conduct regular inspections.
* Coastal states use technologies like satellites and aircraft for surveillance.
* Sanctions for Non-Compliance
* MARPOL violations can result in:
* Fines or detention of ships.
* Criminal or civil liability for shipowners, operators, and crew.
* Withdrawal of certificates or operating licenses.
Challenges in Shipping Decarbonisation
- Heavy Reliance on Fossil Fuels- heavy fuel oil (HFO) and marine diesel oil (MDO), which are carbon-intensive,
- Technological Limitations
Alternative fuels are in alternative stages of developmets and ships are typically designed to run on conventional fuce and significant redisign and investment would be necessary for alternative power sources Energy storage: Storing alternative fuels or energy on ships, especially for long-haul voyages, is difficult due to their lower energy density compared to traditional fuels.
- Green ports and refueling facilities that support the transition to green shipping are still limited in many parts of the world.
Prospects for Shipping Decarbonisation
- Advancements in Alternative Fuels
LNG: While still a fossil fuel, LNG has a lower carbon footprint than traditional fuels, and its adoption is growing as a transitional fuel.
Ammonia and Hydrogen: Both are considered promising fuels for decarbonising shipping, as they can be produced from renewable energy sources (green ammonia and green hydrogen). These fuels produce zero direct emissions - Technological Innovation
Wind-assisted propulsion:
Energy-efficient ship designs:
Carbon capture technologies - Regulatory Support
IMO’s 2050 Targets: - . Market Demand for Sustainable Shipping
Green Shipping
Green shipping refers to the transition towards environmentally sustainable shipping practices that aim to reduce the shipping industry’s carbon footprint and other environmental impacts, such as air pollution and marine pollution.
Key Aspects of Green Shipping:
Sustainable Ship Design: Focus on creating vessels that are energy-efficient and low-emission.
Renewable Energy: Using renewable energy sources, such as wind and solar, to reduce fuel consumption.
Alternative Fuels: Transitioning to cleaner fuels like ammonia, hydrogen, LNG, and biofuels to replace traditional marine fuels.
Carbon Neutrality: Efforts towards achieving carbon-neutral shipping through energy efficiency, renewable energy adoption, and carbon offsetting.
Significance of the LOSC in Social and Labour Matters Concerning Ships
Significance of the LOSC in Social and Labour Matters Concerning Ships
The United Nations Convention on the Law of the Sea (LOSC), while not directly regulating social and labour matters on ships, plays a key role in supporting global efforts to improve seafarers’ rights and conditions through the following:
- Flag State Responsibility: The LOSC mandates that flag states are responsible for ensuring ships under their registry comply with international labour standards, including health, safety, and working conditions for seafarers.
- Linking with International Conventions: The LOSC complements international conventions like the ILO Maritime Labour Convention (MLC), which directly addresses seafarers’ rights to fair wages, working hours, and social security. The LOSC ensures these conventions are respected by supporting free navigation and flag state jurisdiction.
- Enforcement Mechanisms: The LOSC establishes frameworks for enforcement through flag state jurisdiction and port state control, allowing states to inspect foreign ships and ensure compliance with labour standards, enhancing global protection for seafarers.
In summary, the LOSC creates a legal environment that enables international conventions to safeguard the rights and welfare of seafarers across different jurisdictions.
2006**
**The Maritime Labour Convention (MLC),
Central Aim
The central aim of the MLC, 2006, is to ensure fair treatment of seafarers, providing them with decent working and living conditions while aboard ships. It aims to:
- Improve working conditions for seafarers.
- Protect seafarers’ rights to fair wages, safety, and social protection.
- Promote global consistency and compliance with these standards.
Key Components
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Seafarers’ Employment Rights
- Seafarers have the right to a written employment agreement, specifying conditions of employment, including wages, hours of work, and leave.
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Wages and Payment
- Seafarers are entitled to fair wages, which must be paid regularly and without delay. There are provisions for repatriation and social security.
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Hours of Work and Rest
- Regulations on hours of work and rest ensure that seafarers have sufficient rest to prevent fatigue and ensure safety.
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Health, Safety, and Welfare
- Ships must meet minimum standards for health and safety practices, including access to medical care and safe working conditions.
- Adequate facilities for food and accommodation on board must be provided, along with welfare services such as recreational facilities.
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Training and Certification
- Seafarers must be adequately trained and certified to perform their duties, ensuring safety at sea and competence in their roles.
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Port State Control
- Port states have the authority to inspect foreign ships and enforce compliance with the MLC, ensuring vessels adhere to the standards set for seafarers’ welfare.
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Complaints and Inspections
- Seafarers have the right to file complaints regarding non-compliance, and ships must undergo regular inspections to ensure adherence to the MLC standards.
Seafarers employment agreement
Key Elements of SEA:
* Employment Terms: It details the duration of employment, job responsibilities, wages, hours of work, leave entitlement, and conditions for repatriation.
* Wages and Payment Terms: Specifies payment details, including the method, currency, and frequency of wage payment.
* Health, Safety, and Working Conditions: The SEA must comply with health and safety standards, ensuring seafarers’ well-being while at sea.
* Repatriation: It includes provisions for repatriation, ensuring that the employer will bear the cost of returning the seafarer home if they are stranded or in case of termination.
Seafarer abandonment
Key Issues in Seafarer Abandonment:
* Causes: Abandonment typically occurs due to the financial difficulties or bankruptcy of the shipping company or when employers refuse to fulfil contractual obligations.
* Legal Protection: Under international conventions, like the MLC, 2006, shipowners are legally obligated to repatriate abandoned seafarers and provide for their basic needs.
* International Response: Organizations such as the International Transport Workers’ Federation (ITF), IMO, and ILO help facilitate repatriation and support abandoned seafarers. The MLC, 2006 requires shipowners to provide financial guarantees for repatriation.
Concept of Ship Arrest
A ship arrest refers to a legal action where a court orders the detention of a vessel to secure a claim. This procedure is typically used by a creditor to ensure that a ship remains in the jurisdiction of the court until the underlying dispute is resolved.
Reasons for Ship Arrest
There are several reasons why a ship may be arrested, including:
- Unpaid Debts: This is the most common reason, where the shipowner fails to settle debts owed to suppliers, contractors, or other parties.
- Breach of Contract: A ship can be arrested for non-compliance with charter agreements or breach of service contracts.
- Maritime Liens: Claims related to damage caused by the ship, unpaid salvage services, or crew wages may result in arrest.
- Damage to Cargo: If the ship causes damage to cargo during transport, the owner or operator may be held liable.
- Personal Injury Claims: Seafarers or other individuals injured aboard a vessel may seek to arrest the ship for compensation.
- Environmental Claims: In cases of pollution or environmental damage caused by the vessel, authorities or affected parties may arrest the ship.
ranking of maritime claims
under the Admiralty Act, 2017
Maritime Claims and Their Ranking in Ship Arrest (India)
Maritime Claims
A maritime claim refers to a legal right arising out of disputes related to maritime activities. Under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the following are key examples of maritime claims:
- Damage caused by a ship (e.g., collision).
- Loss or damage to cargo.
- Claims for wages or dues of seafarers.
- Salvage operations.
- Port dues or pilotage.
- Pollution or environmental damage.
Ranking of Maritime Claims
When a ship is arrested, claims are ranked in order of priority for payment if the ship is sold. Indian law adopts an internationally recognized priority system. The ranking under the Admiralty Act, 2017 is as follows:
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Maritime Liens (Highest Priority):
These are privileged claims attached to the ship itself, regardless of ownership changes, and include:- Wages of crew and master.
- Salvage claims.
- Port and canal dues.
- Damage caused by collision or similar events.
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Statutory Claims:
Claims arising out of contracts, such as cargo loss/damage or charter disputes, rank below maritime liens. -
Mortgage and Hypothecation:
Claims by creditors secured through mortgages on the vessel are ranked after maritime liens. -
General Unsecured Claims:
These include other claims not covered above and rank lowest in priority.
If there are more than one claim in any single category of priority, they shall rank equally and salvage claims rank in inverse order of time to when the claims accrued.
Shipping Corporation of India Ltd. v. Machado Brothers and Others (
In this case, the court reinforced the principle that salvage claims are prioritized based on their recency, and highlighted the importance of salvage operations in ensuring the safety of life and property at sea.
process of maritime claim
* Filing a Claim:
* The creditor (plaintiff) seeking the ship arrest must first file a suit in the Admiralty Court of India, which has jurisdiction over maritime matters. The plaintiff must present evidence of their claim (e.g., unpaid debts, breach of contract, etc.).
-Application for Arrest:
* Along with the suit, the creditor files an application for ship arrest with the court. This application must outline the nature of the claim and the ship’s connection to the court’s jurisdiction (such as the ship’s presence in Indian waters or ownership by a party residing in India).
Issuance of Arrest Order:
*If the court is satisfied with the claim, it may issue an order of arrest. This order is directed to the Sheriff or a designated maritime authority to detain the vessel. The ship may be physically detained in the port or anchorage.
Posting of Security:
* To obtain the release of the ship, the shipowner or interested party can post security in the form of a bank guarantee or cash equivalent to the claim. The security serves as an assurance that the shipowner will fulfill the judgment if the case is decided in favor of the creditor.
Court Hearing:
* After the arrest, the court will hold hearings to examine the merits of the claim. The shipowner or operator has the opportunity to contest the arrest, and the creditor must present evidence to support the claim.
Resolution or Release:
* If the court rules in favor of the creditor, the ship may either be sold or the security posted is used to satisfy the debt. If the claim is dismissed, the ship may be released, and the owner may seek compensation for the wrongful arrest.
- Maritime Claims and Jurisdiction:
- The court’s jurisdiction is typically based on factors such as the ship being within Indian waters or having ties to India, such as ownership, a charter agreement, or a pending maritime claim.
action in rem and personem
Action in Rem: Targets the ship; arrest and sale are remedies.
Action in Personam: Targets the person; ship arrest occurs only if tied to the owner’s liability.
Ship Arrest Conventions
Ship Arrest Conventions
1. International Convention Relating to the Arrest of Seagoing Ships, 1952
- Focuses on uniform rules for ship arrest globally.
- Allows arrest for specific maritime claims (e.g., unpaid crew wages, damage, cargo disputes).
- Ships can only be arrested for claims against the shipowner or in cases of maritime liens.
- Widely ratified, forming the basis for ship arrest laws in many countries.
2. International Convention on Arrest of Ships, 1999
- Modernizes the 1952 Convention, expanding the scope of maritime claims (e.g., environmental claims, port charges).
- Allows arrest for claims against the operator or bareboat charterer, not just the owner.
- Emphasizes security measures for releasing arrested ships.
- Ratification is limited compared to the 1952 Convention.
Both conventions guide national laws, including India’s Admiralty Act, 2017, for consistency in maritime claim enforcement.
*Dimitrios Paizis vs Motor Vessel Nicos
Yes, the Dimitrios Paizis vs Motor Vessel Nicos case was primarily about jurisdiction under admiralty law.
The dispute involved the Bombay High Court’s admiralty jurisdiction to entertain a claim for unpaid crew wages. The court had to determine whether it could exercise jurisdiction in rem to arrest the vessel MV Nicos as security for maritime claims.
The court ruled in favor of exercising admiralty jurisdiction, recognizing unpaid crew wages as a maritime lien, which falls under the scope of admiralty law. This decision reaffirmed the jurisdiction of Indian admiralty courts in matters involving maritime claims like unpaid wages.
