Lloyd's Maritime and Commercial Law Quarterly
MARINE INSURANCE: REFORMED OR DEFORMED?
C. C. Nicoli*
A significant proportion of cover for New Zealand marine risks is written by foreign controlled underwriters, principally British. As part of a 1975 study the New Zealand Contracts and Commercial Law Reform Committee looked at five aspects of insurance law which presented problems for the insured, predominantly the “consumer” insured. The Committee’s Report, which resulted in the Insurance Law Reform Act 1977, stated: “ … it seemed to us that action in respect of the particular matters to which we refer should not be held up by the need for a wider study.” The purpose of this paper is to “revisit” the 1977 statute to explore some provisions which may have benefited from “wider study” when viewed against the background of the Marine Insurance Act 1908.
Introduction
In the 1970s and early 1980s New Zealand embarked upon a process of reform of “lawyers’ law”. Various enactments were passed which addressed problems with and injustices perpetuated by the common law. Examples are the Contractual Mistakes Act 1977, the Illegal Contracts Act 1970, the Contracts (Privity) Act 1982, the Contractual Remedies Act 1979 and, more particularly, the Insurance Law Reform Act 1977. The purpose of this article is to explore two aspects of the reform of insurance law with particular reference to marine insurance bearing in mind that, while the Marine Insurance Act 19081 was not repealed by the Insurance Law Reform Act 1977, the latter legislation is paramount in cases of conflict.2 Aspects addressed are, first, the role of brokers in the negotiation and conclusion of contracts of marine insurance and, secondly, the role of marine insurance warranties.
As may be expected in view of the country’s size, New Zealand does not have an insurance market of the same sophistication as Britain’s. Most risks written domestically do not involve large sums of money and the majority are domestic in nature. Insurers tend to be local subsidiaries of English and Scottish insurance companies. The reform of insurance law concentrated on what may, loosely, be described as consumer issues, “consumers” being insureds. Unfortunately, with the focus being placed upon such issues and sometimes with a view to correcting specific problems of narrow compass, some of the reforms had ramifications wider than was, arguably, intended.
* Lecturer, Department of Commercial Law, University of Auckland.
1. The (N.Z.) Marine Insurance Act 1908 is almost identical to the (U.K.) Marine Insurance Act 1906. Where sections of the M.I.A. 1908 are mentioned, reference will also be made to the corresponding sections of the M.I.A. 1906.
2. Insurance Law Reform Act 1977, s. 14.
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