Defences available to a marine insurer could be classified as negative and positive depending on which party the burden of proof lies. In cases where the cause of loss is suspicious, insurers usually rely on both types of defences. This was observed in a recent case, The Milasan, where a pleasure yacht sank in calm weather without any obvious reason. The insurers not only put the assured under a heavy burden of proof by bringing a negative defence but also relied on certain positive defences, namely breach of warranty and wilful misconduct of the assured. This article seeks to evaluate negative and positive defences raised in The Milasan and show the interrelationship between them. Legal rules in relation to these defences have been analysed. It has been illustrated that problems as to interpretation of express warranties could arise and there seems to be a dispute whether waiver of breach of marine warranties by election has survived the automatic discharge rule. It has also been illustrated that wilful misconduct of the assured is a type of defence, which requires reliance on various external evidence.

Discussing the possible courses which can be taken by insurers when a claim is made on them, Lord Evershed, M.R., stated in Regina Fur Co. Ltd v. Bossom: 1

Now, I have no doubt whatever that insurers, having a claim of this kind made against them, are entitled to say, by way of defence, “Prove the case strictly—we require it to be strictly proved”… If such is the nature of the substantial defence made, then, if the [assureds] succeed in establishing a prima facie case, the onus in some way shifts to the [insurers], who, if they desire to persist in the defence, must then allege and prove affirmatively some answer to the case which has been prima facie established, and they must therefore, by pleading, give proper notice of what that answer is.