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第二章 海上保险遵循的原则 PowerPoint PPT Presentation


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第二章 海上保险遵循的原则. 学习目标 通过对本章的学习,应达到以下目标: 掌握可保利益的定义与作用 熟悉最大诚信的内容及应用 了解近因的内涵及意义 掌握补偿与代位追偿的内容及应用. 第一节 可保利益原则. 一、海上保险可保利益定义 ( Definition of Insurable Interest ) 1746 年之前,英国保险人不要求被保险人证明他们对投保的船舶或货物拥有所有权,也不要求被保险人出示他们对保险标的物具有某种利益。

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第二章 海上保险遵循的原则

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Definition of Insurable Interest

  • 1746

  • 1746(Marine Insurance Act 1746)


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1906Marine Insurance Act Subject to the provisions of this Act, every person must have an insurable interest who is interested in a marine adventure. In particular, a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof.


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1The assured must be interested in the subject-matter insured at the time of loss though he need not be interested when the insurance is effected.

2Where the assured has no interest at the time of the loss, he cannot acquire interest by any act or election after he is aware of the loss.


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1909The Marine Insurance Gambling Policies Act l909


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CII1991Contract Law and Insurance Insurable interest is the legal right to insure arising out of a financial relationship, recognized at law, between the insured and the subject matter of insurance.200912


Feature function

Feature & Function

1.

2.

3.

4.

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2.

3.


Marine insurable interest

Marine Insurable Interest

  • Vessel

  • Freight

  • Cargo

  • Interrelated Liability


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1996101000019961119961230199718


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1999 8 1999 9

2000


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  • ()

  • 1300655645


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  • 1260510750

  • 105


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  • 47


Utmost good faith

Utmost Good Faith

CII1991Contract Law and Insurance

Utmost good faith is a positive duty to voluntarily disclose, actually and fully, all facts material to the risk being proposed, whether asked for them or not.


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190617 A contract of marine insurance is a contract based upon the utmost good faith and, if the utmost good faith is not observed by either party, the contract may be avoided by the other party.


Contents of utmost good faith

Contents of Utmost Good Faith

  • Disclosematerial fact


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1

  • 1Subject to the provisions of this section, the assured must disclose to the insurer, before the contract is concluded, every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business, ought to be known by him. If the assured fails to make such disclosure, the insurer may avoid the contract.

  • 2Every circumstance is material, which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk.


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(3) 222:


2 disclosure by agent effecting insurance

2Disclosure by agent effecting insurance

1Every material circumstance which is known to himself, and an agent to insure is deemed to know every circumstance which in the ordinary course of business ought to be known by, or to have been communicated to, him; and

  • 2Every material circumstance which the assured is bound to disclose, unless it came to his knowledge too late to communicate it to the agent.


Representation

Representation

  • 190620


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  • 1Every material representation made by the assured or his agent to the insurer during the negotiations for the contract and before the contract is concluded, must be true. If it is untrue the insurer may avoid the contract.

  • 2A representation is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk.

  • 3.A representation may be either a representation as to a matter of fact or as to a matter of expectation or belief.


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  • 4A representation as to a matter of fact is true, if it is substantially correct, that is to say, if the difference between what is represented and what is actually correct would not be considered material by a prudent insurer.

  • 5A representation as to a matter of expectation or belief is true if it is made in good faith.

  • 6A representation may be withdrawn or corrected before the contract is concluded.


Warranty

Warranty

  • 1906

  • A warranty means a promissory warranty, that is to say, a warranty by which the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the existence of a particular state of facts.


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1Express warranty

  • 1906

    An express warranty may be in any form of words from which the intention to warrant is to be inferred. An express warranty must be included in, or written in the policy, or must be contained in some document incorporated by reference into the policy. An express warranty does not exclude an implied warranty, unless it is inconsistent therewith.


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2Implied Warranty

  • Warranty of seaworthiness of ship

    Warranty of seaworthiness of goods

    Warranty of legality

    3.


Application of utmost good faith

Application of Utmost Good Faith

Disclosure & Non-disclosure

Presentation & Misrepresentation


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  • Innocent Misrepresentation

  • Negligent Misrepresentation

  • Fraudulent Misrepresentation

    Misrepresentation and Financial Services Act 19867


Legal liability

Legal liability

1


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  • 16

  • 36


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  • 1992


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2

  • 17

  • 151


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1. A19954

1995914A

1995926A136.219959271996926


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1995119120119

A4

A


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  • 110.910%


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  • 2

  • 1999118410002361177.6113183010654.735

  • 35(:.)


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  • 184


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Definition of Proximate Cause

Contract Law and Insurance

Proximate cause means active, efficient cause that sets in motion a train of events which brings about a result, without the intervention of any force started and working actively from a new and independent source.


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  • 1906Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but he is not liable for any loss which is not proximately caused by a peril insured against.


Decision of proximate cause

Decision of Proximate Cause

1


Rules for decision of proximate cause

Rules for Decision of Proximate Cause

  • 1

  • 2


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11938


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  • 21988.4.1. 70612001342.5706

  • 1988.4.2.706


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  • 3Leyland Shipping Co.Ltd. v. Norwich Union Fire Insurance Society Ltd.

  • Leyland

  • LeylandLord Shaw


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  • 4

  • 5

  • 6

  • 7


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Definition of Indemnity

  • Contract Law and Insurance

    Indemnity can be looked upon as exact financial compensation, sufficient to place the insured in the same financial position after a loss as he can enjoy immediately before it occurs.


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C3R

Cash

  • Repair

  • Replacement

  • Reinstatement


Principle of indemnity

Principle of Indemnity

  • 1

  • 2

    = x

  • 3


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4


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Definition of Subrogation


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252

252


Stipulation by law

Stipulation by Law

  • 1


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254

  • 2

    3

254


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  • 4


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  • 5


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