Professional Documents
Culture Documents
MARINE POLICES
Abstract
A policy of assurance has long been held not be a perfect contract of indemnity. This article
examines this truism in the context of value policies. It can be seen that in this context
imperfection is allowed or even encouraged in the interest of commercial efficacy.
Introduction
The principles of insurance law are an idiosyncratic mixture of contract, law and practice. 1
In the context of marine insurance the contract embodied in the policy of assurance is given
prime of place and is fostered by the Marine Insurance Act 1906 and market practice. The
parties to the policy, the assured and the insured, are given relative freedom to mould the
agreement to their specifications. However, this freedom is not without limitation.
Mandatory rules of public policy come into play. These rules serve to bind this freedom and
bring a sense of homogeny to what could otherwise be an extremely varied tapestry of
contracts. In insurance practice overriding public policy concerns against profiteering
centred on the prohibition of gaming and wagering, unlawful adventure and fraud act to
curb any policy arrangements which are considered too illicit to be allowed.2 In a context
which outright declares that it is governed by the concept of indemnity, public policy
endeavours are servants to this governance creating clashes with the freedom of the parties
to contract. The theorist and practitioner are hence presented with various microcosms in
which this struggle between the contracting parties and public policy is perceptible. In this
article the struggle between the marine insurance laws wider concern of adhering to the
concept of indemnity as based on public policy and the freedom to contract given in the
valued policies will be described and examined. In the context of valued policies, where the
parties agree the indemnity to be paid between themselves credence often lies is favour of
their agreement on this issue. The law seeks to uphold such agreements so long as they do
not infringe any of the public policy motives set out above. In doing so, the principle of
A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the
assured, in the manner and to the extent thereby agreed, against marine losses, that is to say
losses incident to the marine adventure.
Expressly, the contract agreed by the insurer and the assured is one of indemnity. The
insurer agrees to provide protection against stipulated losses the assured may incur by
reason of being connected to a marine adventure. As consideration for this protection, the
assured pays a premium calculated by reference to the nature and degree of risk involved in
the adventure. The ultimate objective behind this exchange is to ensure that in the event
that a peril for which provision is made causes loss or damage to the subject matter the
assured would be compensated under the policy. In effect, the policy transfers the risk of
loss or damage occurring to the subject matter from the assured to the insurer who will
bear it should it actualize.
Historically, the transfer of risk by way of marine insurance policy was vital to the
development and preservation of international trade. This was so given the high degree of
Under the policy should a loss occur the insurer is to pay compensation to the assured. In
the context of indemnity insurance, traditionally that compensation is to be such that the
assured is returned to the position occupied at the commencement of the risk. In Castellain
v Preston5 Mr Justice Brett expressed this concept in these terms:
The contract of insurance contained in a marine or fire policy is a contract of indemnity, and
of indemnity only, and this contract means that that assured, in the case of loss for which the
policy has been made, shall be fully indemnified, but shall never be more than fully
indemnified.
Taking this statement into consideration, it is evident that where the assured is to receive
compensation the sum paid is not to be more than is necessary to return the assured to the
aforementioned position. By returning the assured to the position as at the commencement
of the risk the marine insurance policy has effect its aim by providing the assured with a
full indemnity. It follows from this objective to fully indemnify that assureds are also not to
receive an indemnity which is not sufficient to return them to this position. Ideally, the
assured is hence not to be made any worse or better off by the indemnity received. In
placing such limits on recovery under the policy the principle of indemnity ensures that the
assured receives adequate protection from loss or damage incurred while ensuring that the
assured is not over-indemnified, allowing a profit, nor under-indemnified, still leaving the
assured exposed to loss.6
7 Castellian v Preston (1883) 11 QBD 380, Rickards v Forestal Land, Timber and Railway Co Ltd
[1941] 3 All ER 62.
8 Castellain v Preston (1883) 11 QBD 380 at 386.
9 [1941] 3 All ER 62 at p. 76.
10 Rhidian Thomas. The concept and measure of indemnity in marine insurance policies. The
Section 27 of the MIA 1906 hearkens back to the contractual nature of indemnity as pointed
to in section 1 of the same act where it is stated that the insurer undertakes to indemnify
the assured, in the manner and extent thereby agreed. By concluding an agreed value the
parties effectively bring the terms of indemnity within their control. Where this is done
their agreement is regarded as conclusive and binding not only in respect of the measure of
indemnity receivable under the policy but also in respect of all monetary matters
concerning the subject matter insured. 14Hence, both parties are prevented from denying
that the insurable value of the subject matter is other than that stated in the policy.15 The
courts are protective of the parties freedom to contract in this regard and thus will aim to
uphold the agreed value by following the measure of indemnity as set by the inclusion of
11 Thames & Mersey Insurance Co Ltd v Gunford Ship Co Ltd [1911] A.C. 529
12 Howard Bennett. The Law of Marine Insurance
13 Ibid.
14 F.D. Rose. Marine Insurance: Law and Practice. 2nd ed.
15 Irving v Manning(1847) 1 HL Cas 287.
such value in the policy. Nonetheless, as provided in section 27(3), the conclusiveness of the
agreed value may be tested in face of subjection to the provisions of the MIA 1906 and
where there may be fraud.16 That being so, where the agreed value appears to have been set
against a background of misrepresentation for instance or through fraudulent endeavours
the court may interfere to put the measure of indemnity right. However, the old adage of
contract law that the courts are not tasked with the duty of policing bad bargains must be
borne in mind and the parties, in this regard, should be wary of the terms of the policy.
It should further be noted that an agreed value is not the same as a sum insured. The
function of a sum insured is to place an overall limitation on recovery under the policy.
Unlike an agreed value, a sum insured bears no relation to the value of the subject matter
insured. Where a policy contains an agreed valued it is likely that the policy is a valued
policy. On the other hand where the policy contains a sum insured it is likely that the policy
is an unvalued policy. However, ultimately, the question of which category a policy falls
under is a matter of construction, as the distinction at times is not as unambiguous. 17
Nevertheless a crucial distinguishing factor between the two is that whereas under an
unvalued policy that assured has to prove the actual value of the subject matter while under
a valued policy that need not be done.18 This factor makes the valued policy in an attractive
means of insurance as the parties are saved the time and expense of having to inquire about
the actual value of the subject matter. In light of this it is not surprising that that some of the
most commonly used standard form policies are valued policies.19
Over-valuation
As a brief but important note, that fact that the agreed valuation constitutes an
overvaluation of the subject matter insured is not itself grounds to re-open the agreed
value. In the ordinary case the fact of over-valuation serves as an indicator flagging up some
underlying contravention of the rules of marine insurance law as they flow from public
17th ed.
19 Rhidian Thomas, The concept and measure of indemnity in marine insurance policies. The
Total Loss
In the context of marine insurance a total loss can take one of two forms, either actual total
loss or constructive total loss. In both cases the subject matter insured is considered
completely lost to the assured and upon that loss the assured is entitled to the full agreed
value under the policy. As noted the agreed value under the policy is representative of the
insurable value of the subject matter under the policy. It is this to which the assured is
entitled in face of a total loss regardless of whether the policy is valued or unvalued. The
conclusiveness of the agreed value in this case estops the assured or insurer from disputing
Partial Loss
Where the assured suffers a loss which is not a total loss, the loss is said to be partial. In
such a case the assured does not receive the entirety of the agreed value. Instead the
indemnity to be paid to the assured is measured by reference to the agreed value. Such
proportion of the agreed value that is commensurate with the loss sustained is granted to
the assured as compensation. The method used to derive this sum is detail below in regards
to the specific subject matter while simultaneously highlighting the inconsistency between
using such method and the principle of indemnity.
Freight
In dealing with insurances on freight, a partial loss may arise where for instance the whole
of the cargo upon which freight is to be earned is not loaded or is lost. Partial loss of freight
is of particular significance in the context of valued policies when considering that the value
of the freight agreed in the policy is based on a full cargo and the market rates existing at
the time the policy is effected.
In Forbes v Aspinall23 a claim was lodged for total loss and hence payment of the agreed
value of 6,500 under a policy on freight for a cargo of 55 bales of cotton. Only part of the
cargo was load and then lost in due course. It was held by the Kings Bench that the assured
was not in fact entitled to the full value agreed but instead to the proportion of such value
that represented the actual loss suffered. The reason behind this being that the principle of
indemnity required an apportionment to be effected where the agreed value was based on
the loading of a full cargo and only part of the cargo is in fact loaded. 24 In this case had the
21Gilman, John, Robert Merkin and Claire Blanchard. Arnoulds Law of Marine Insurance and Average.
17th ed.
22 Rhidian Thomas, The concept and measure of indemnity in marine insurance policies. The
Modern Law of Marine Insurance. Vol. 3.
The mode of apportionment by reference to the agreed value in the policy came to be
embodied in section 70 of the MIA 1906. The provision states that where there is a partial
loss of freight under a valued policy, the indemnity to be paid to the assured is to be
calculated by reference to the agreed value stipulated by the parties. Expressly, the section
25 [1894] P 320.
26Howard Bennett. The Law of Marine Insurance
prescribes that the indemnity the assured receives is to be that proportion of the agreed
value that correlates to the ratio of the freight lost by the assured versus the whole of the
freight at risk on the adventure. While the apportionment method takes account of the
principle of indemnity it is easy to see that in some cases the assured may be over-
indemnified. This would occur where the value agreed on freight is set high or where the
value of the freight depreciates with the result that the value in the policy is higher than the
market value of the freight as seen in The Main above.27 Explicitly, in these situations should
a partial loss of the freight occur, the apportionment would be made against an agreed value
that does not reflect the actual value of the freight at the time of loss. Thereby the assured
gains in excess of the loss actually suffered, thus eschewing the concept of indemnity.
However, in modern practice attempt is made to abate this effect. In the Institute Voyage
Clauses Freight 95 at 10.1 and the Institute Time Clauses Freight 95 at 14.1 clauses are
introduced which place a limit on the amount recoverable to the gross freight actually lost.28
However seeing that the clauses use the gross freight as a means of limitation the assured is
still presented with a windfall in light of the fact that incidentals that would have been
payable if the freight had been earned are included in the tally.29
Goods
Under the MIA 1906, partial loss of goods is governed by section 71. As is the case in
regards to freight, the indemnity payable to the assured is also apportioned by reference to
the agreed value. Under the section 71 a distinction is made between goods which are
partially lost by reason of part of a whole consignment being totally lost or by reason of a
part or the whole of the goods being damaged but not a total loss. Where a part of the goods
becomes a total loss, the measure of indemnity under a valued policy is determined by
taking the insurable value of the part of the goods lost set against the insurable value of the
whole of the goods. This sum is then compared to the agreed value set in the policy and an
appropriate proportion of the agreed value becomes the indemnity payable to the assured.
In the case of a partial loss incurred by damage to a part or whole of the goods the measure
of indemnity is calculated by taking a proportion of the agreed value that corresponds with
27 Rhidian Thomas, The concept and measure of indemnity in marine insurance polices, The
Mordern Law of Marine Insurance. Vol. 3.
28 Ibid.
29 Ibid.
sum of the damaged value of the goods subtracted from the gross value the goods would
have had in their undamaged state.
As highlighted above in regards to the method of measuring the indemnity payable for a
partial loss of freight, the use of the agreed value provides an affront to the tradition
concept of indemnity in marine insurance. The same is true in context of partial loss of
goods. Where a high agreed value is placed on the goods in the policy the assured stands to
gain more than would be necessary to indemnify against the partial loss suffered. 30 Also
where market values are subject to fluctuation the assured may well receive more or less
than a full indemnity.31 In this scenario, the market value of the subject matter insured may Commented [KR1]: Needs to be finished!
no longer closely straddles the agreed value but instead stands markedly above or below
such value. Hence, where the market value stands much above the assured may receive an
indemnity not nearly sufficient to compensate for the partial loss of the subject matter.
Inversely, where the market value is much below the agreed value the indemnity given will
result in a profit to the assured.
Ships
Under section 69 of the MIA 1906 the measure of indemnity in cases of partial loss of ships
is addressed. The Act envisages three situations. First, where the damage to the ship has
been wholly repaired the measure of indemnity is the reasonable cost of repairs not
exceeding the sum insured in respect of any one casualty. Second, where the ship is only
partially repaired, the assured is again entitled to the reasonable cost of repairs in addition
to being indemnified for the reasonable depreciation in the value of the ship in light of the
unrepaired damage. The total sum payable in this regard is not to exceed the cost of fully
repairing the damage. Third, where the ship has been neither repaired nor sold during the
currency of the risk the assured is entitled to a sum reflecting the reasonable depreciation
in respect of the unrepaired damage but not exceed the reasonable cost of repairing the
damage sustained. Not included in the Act however is a third situation which is however
addressed at common law. Namely, where the ship has been wholly or partially repaired
and has been sold during the currency of the risk. In Pitman v Universal Marine Insurance Co
30 Rhidian Thomas, The concept and measure of indemnity in marine insurance policies, The
Mordern Law of Marine Insurance. Vol. 3.
31 Ibid.
it was held that the assured in such a case would be entitled to the depreciation in value of
the vessel occasioned by the damaged incurred. In addition in deference to section 75 of the
MIA the assured in this case is not to be entitled indemnified beyond the estimated costs of
repairing the ship.
As can be seen with the exception of the first circumstance, the measure of indemnity in the
case of partial loss of a ship is calculated with reference to the depreciation in value of the
vessel in light of the degree of repairs undertaken. Depreciation in the context marine
insurance is determined by subtracting the damaged value of the ship from the sound value
of the ship as these figures stood at the termination of the risk.32 This formulation reveals an
obvious difficulty for any attempt to adhere to the traditional concept of indemnity. The
calculation is made by reference to values taken at the expiry of the risk. The difference
between these two figures is, in the case of a valued policy, then to be expressed as a
percentage and measured against the agreed value by taking such percentage of the agreed
value that is representative of the difference.33 The problem here is that the sound and
damaged values as taken at the expiry of the risk are used alongside the agreed value which
is determined at the commencement of the risk to ascertain the indemnity payable to the
assured. Thus where the agreed value is highly set the assured is paid an indemnity which
may be well in excess of the loss suffered through the depreciation in the ships value. 34 Commented [KR2]: Expand on this
Ergo, this method of measuring the indemnity is also subject to the same variances as seen
with the apportionment method used in the case of freight and goods.
Conclusion
What the measure of indemnity in the case of valued policies reveals to us is that achieving
full indemnification by reference to the agreed value in most cases produces a result which
does not align with the concept of indemnity in its traditional form. This does not negate the
fact that the agreed value may contribute to an indemnity which is more akin to the
traditional concept and not help to significantly over-indemnify or under-indemnity the
32Rhidian Thomas, The concept and measure of indemnity in marine insurance policies, The
Mordern Law of Marine Insurance. Vol. 3., Lidgett v Stevenson (No. 2) (1871) L.R 6 CP 616, Helmville
Ltd v Yorkshire Insurance Co Ltd (The Medina Princess) [1965] 1 Lloyds Rep 361
33 Howard Bennett, The Law of Marine Insurance
34 Rhidian Thomas, The concept and measure of indemnity in marine insurance policies, The
Books
Bennett, Howard. The Law of Marine Insurance, 2nd ed. Oxford: Oxford Press, 2006.
Gilman, John, Robert Merkin and Claire Blanchard. Arnoulds Law of Marine Insurance and
Average, 17th ed. Sweet and Maxwell, 2008.
Hodges, Susan, Law of Marine Insurance, 1st ed. London: Cavendish, 1996.
Legh-Jones, Nicholaw. MacGillivray on Insurance Law, 11th ed. London: Thomson Rueters,
2008.
Rose, F.D. Marine Insurance: Law and Practice, 2nd ed. London: Infroma, 2012.
Thomas, Rhidian. The concept and measure of indemnity in marine insurance policies, The
Mordern Law of Marine Insurance. Vol. 3. Informa, 2009. Commented [KR3]: