H&M claims - additional topics Flashcards
Incidence of loss - latent defect
When damage occurs (not necessarily when the latent defect came about)
Knight v Faith:
Set out doctrine that if is a ship is damaged during the currency of the policy but the full extent of the damage is not discovered/realised until the policy has expired, the assured may nevertheless claim from insurers. The damage must occur during the policy, but the loss need not have occurred in that time (death blow principle)
Incidence of loss - Knight v Faith
Set out doctrine that if is a ship is damaged during the currency of the policy but the full extent of the damage is not discovered/realised until the policy has expired, the assured may nevertheless claim from insurers. The damage must occur during the policy, but the loss need not have occurred in that time (death blow principle)
Incidence of loss - Hough v Head
Policy covered loss of freight. Casualty which caused the loss of freight occurred during the policy period, but repairs were not effected until the policy had expired, at which point there was a loss of freight. Held insurers not liable, as there had been no loss of freight at all during the currency of the policy, freight had actually been paid in full for the entire period covers
Incidence of loss for barratry
When an actual loss had arisen due to barratry (barratry could be occurring for a while before detected, during which no actual loss has occurred)
Lockyer v Offley – Crew were smuggling, which was an act of barratry. The vessel was seized for smuggling, but this was done after the policy had expired. Barratry was seen to be only the remote cause of seizing, so insurers were not liable even though barratry had occurred during the currency of the policy. (though peril was operating during the risk, no loss had actually taken place until after the insured voyage had been safely completed – if vessel was seized prior to the end of the policy, then of course it would be covered)
Incidence of loss - Kelly v Norwich union
Subsidence under a bungalow caused by mains water leak – leak occurred in 1977 and damage caused in 1981. Assured took out his first policy in 1977, before first water leak – held no claims as COD occurred before the policy inception HOWEVER in marine cases this is different - they cover damage occurring within the policy period – doesn’t matter if COD was before the policy started (why there are claims for progressive damage)
The apportionment of claims between various policies where applicable deductibles are different
It shall be divided in proportion of the loss that falls in each policy
Successive losses, including partial loss followed by total loss MIA77
MIA s. 77 Successive losses.
(1) Unless the policy otherwise provides, and subject to the provisions of this Act, the insurer is liable for successive losses, even though the total amount of such losses may exceed the sum insured.
(2) Where, under the same policy, a partial loss, which has not been repaired or otherwise made good, is followed by a total loss, the assured can only recover in respect of the total loss: Provided that nothing in this section shall affect the liability of the insurer under the suing and labouring clause.
Cause of action and limitation under English law & YA Rule XXIII
Time limit for actions founded on tort.
An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.
Rule XXIII – Time Bar for Contributing to General Average
(a) Subject always to any mandatory rule on time limitation contained in any applicable law:
(i) Any rights to general average contribution including any rights to claim under general average bonds and guarantees, shall be extinguished unless an action is brought by the party claiming such contribution within a period of one year after the date upon which the general average adjustment is issued. However, in no case shall such an action be brought after six years from the date of termination of the common maritime adventure.
(ii) These periods may be extended if the parties so agree after the termination of the common maritime adventure.
(b) This rule shall not apply as between the parties to the general average and their respective insurers
Calculation of interest due to insurers on payments on account which include general average
1994 Rules
XXI
Interest on Losses made good in General Average Interest shall be allowed on expenditure, sacrifices and allowances in general average at the rate of 7 per cent per annum, until three months after the date of issue of the general average adjustment, due allowance being made for any payment on account by the contributory interests or from the general average deposit fund
2016 Rule XXI
(2016) Rule XXI – Interest on Losses Allowed in General Average
(a) Interest shall be allowed on expenditure, sacrifices and allowances in general average until three months after the date of issue of the general average adjustment, due allowance being made for any payment on account by the contributory interests or from the general average deposit fund.
(b) The rate for calculating interest accruing during each calendar year shall be the 12- month ICE LIBOR for the currency in which the adjustment is prepared, as announced on the first banking day of that calendar year, increased by four percentage points. If the adjustment is prepared in a currency for which no ICE LIBOR is announced, the rate shall be the 12-month US Dollar ICE LIBOR, increased by four percentage points.
