New Data from Sungkyunkwan University Illuminate Findings in Insurance (A Comparative Study On Marine Transport Contract and Marine Insurance Contract With Reference To Unseaworthiness)

2021 JUN 24 (NewsRx) -- By a News Reporter-Staff News Editor at Insurance Daily News -- Current study results on Insurance have been published. According to news originating from Seoul, South Korea, by NewsRx editors, the research stated, “This study analyses the excepted requirement and burden of proof of the carrier due to unseaworthiness through comparison between the marine transport contract and marine insurance contract. This study uses the legal analytical normative approach.”

Our news journalists obtained a quote from the research from Sungkyunkwan University, “The juridical approach involves reviewing and examining theories, concepts, legal doctrines and legislation that are related to the problems. In this study a literature analysis using academic literature and internet data is conducted. The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. In other words, the insurer cannot escape coverage for unfitness of a vessel which arises while the vessel is at sea, which the assured could not have prevented in the exercise of due diligence. The insurer bears the burden of proving unseaworthiness. The warranty of seaworthiness is implied in hull, but not protection and indemnity policies. The 2015 Act repeals ss. 33(3) and 34 of MIA 1906. Otherwise the provisions of the MIA 1906 remain in force, including the definition of a promissory warranty and the recognition of implied warranties. There is less clarity about the position when the source of the loss occurs before the breach of warranty but the actual loss is suffered after the breach. Nonetheless, by s.10(2) of the 2015 Act the insurer appears not to be liable for any loss occurring after the breach of warranty and before there has been a remedy. Originality/value - When unseaworthiness is identified after the sailing of the vessel, mere acceptance of the ship does not mean the party waives any claims for damages or the right to terminate the contract, provided that failure to comply with the contractual obligations is of critical importance. The burden of proof with regards to loss of damage to a cargo caused by unseaworthiness is regulated by the applicable law. For instance, under the common law, if the cargo claimant alleges that the loss or damage has been caused by unseaworthiness, then he has the burden of proof to establish the followings: (i) that the vessel was unseaworthy at the beginning of the voyage; and that, (ii) that the loss or damage has been caused by such unseaworthiness. In other words, if the warranty of seaworthiness at the inception of the voyage is breached, the breach voids the policy if the ship owner had prior knowledge of the unseaworthy condition. By contrast, knowingly permitting the vessel to break ground in an unseaworthy condition denies liability only for loss or damage proximately caused by the unseaworthiness.”

According to the news editors, the research concluded: “Such a breach does not, therefore, void the entire policy, but only serves to exonerate the insurer for loss or damage proximately caused by the unseaworthy condition.”

This research has been peer-reviewed.

For more information on this research see: A Comparative Study On Marine Transport Contract and Marine Insurance Contract With Reference To Unseaworthiness. Journal of Korea Trade, 2021;25(2):152-177. Journal of Korea Trade can be contacted at: Korea Trade Research Assoc, 4503 World Tower, 51, Yeongdong-Daero, Gangnam-Gu, Seoul, 135-729, South Korea.

The news correspondents report that additional information may be obtained from Jee-Moon Pak, Sungkyunkwan University, Graduate School, Dept. of International Trade, Seoul, South Korea.

The direct object identifier (DOI) for that additional information is: https://doi.org/10.35611/jkt.2021.25.2.152. This DOI is a link to an online electronic document that is either free or for purchase, and can be your direct source for a journal article and its citation.

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