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Index

Illegality in Marine Insurance Law

Page 187 Index Index agent illegality of performance, and 40 – 1 Australia 153 – 8 English common law factors 155 Insurance Contract 1984, section 54(2) 157 – 8 knowledge of assured 155 – 6 moral culpability 156 options for reform 156 – 7 section 47 Australian Marine Insurance Act 1909 153 violation of law 154 – 5 warranty of legality issue 55 breach of warranty effect 50 – 1 Insurance Act 2015 164 – 6 law before 12 August 2016 24 – 5 Canada 160 warranty of legality issue 160 causation principle 65 – 8 common law illegality 53 , 121 – 6 construction of policy 121 – 5 deliberate acts 121 – 3 insurance policies rendered illegal by public policy 125 – 6 wilful misconduct 121 – 3 common law illegality defence warranty of legality distinguished 131 – 41 common law rules 129 necessary reform 129 supplementary instrument 129 Commonwealth jurisdictions 4 condition warranty compared 47 – 8 consistency principle 68 – 9 continuing warranty 19 contract illegality tort illegality distinguished 126 – 8 contract terms classes 47 contracts rendered illegal by common law 96 – 113 common law 99 conduct of parties 98 corrective factors 105 consistency test 109 deterring unlawful or immoral conduct 110 – 11 development 96 – 7 different knowledge of parties 100 exceptions 107 – 9 general principles 97 – 107 innocent party, and 100 intention of parties 114 intention to commit legal wrong 99 – 100 knowledge of illegal intention 103 knowledge of illegality 105 maintaining integrity of courts 111 – 12 minor illegality 104 origin 96 – 7 participation 106 participation in illegal purpose 100 profit from illegality 109 – 10 proportionate test 112 – 13 protecting purpose of law 107 – 9 public policy, and 96 – 113 punishments 112 rationale behind public policy 107 – 13 reliance principle 106 – 7 remoteness 101 – 2 seriousness of illegality 105 – 6 statutory illegality, and 98 – 9 statutory illegality distinguished 113 – 15 contracts rendered illegal by statute 91 – 6 aiding and abetting 95 consequences of violation 92 directory requirement 97 exceptions 93 – 4 innocent party 94 knowledge of illegality 95 nature of contract, and 93 obligatory requirement 97 public interest, and 93 purpose of legislation 92 – 3 waiver 94 – 5 contract law illegality defence 91 – 128 contract law illegality application in insurance 115 – 26 crew sufficient or competent 36 dangerous of adventure 139 – 40 de minimis rule 11 – 12 divisibility of warranty 49 – 50 ex turpi causa 55 – 6 importance in insurance 75 – 6 exception warranty, and 15 express warranty 19 foreign law illegality 4 , 143 – 51 criticism of current marine insurance law 149 – 50 English legal position 143 – 7 marine insurance law, and 148 – 50 possible methods for dealing with 150 – 1 Page 188 requirements for effectiveness 146 – 7 violation of foreign law 145 – 6 formation of illegal adventure 34 – 6 illegal adventure formation 34 – 6 forms 34 – 5 loading operation 35 – 6 performance, and 37 sail without licence or convoy 35 sufficient or competent crew 36 illegal adventure by statute 33 illegal adventures because of violation of public policy and common law 34 illegal adventures by King’s or Council’s order 33 illegal performance of marine insurance contracts 29 – 51 illegality defence 2 contract law 4 investigation 3 tort law 3 illegality defence in contract law 91 – 128 application in insurance contracts 91 – 128 contracts rendered illegal by common law 96 – 113 contracts rendered illegal by statute 91 – 6 illegality defence in tort law 55 – 90 application of rationales in insurance 81 – 5 application to insurance law 74 – 89 benefit principle in insurance 79 – 81 causation principle 65 – 8 consistency principle 68 – 9 ex turpi causa 55 – 6 general principles under insurance law 77 – 89 illegal act conducted by claimant subjectively 57 illegality of act committed by claimant because of defendant’s former tort 59 – 60 importance of exturpi causa 75 – 6 intention of statute principle 74 kinds of illegality 56 – 60 narrow and wider rule in insurance law 77 – 9 “no duty of care” principle 62 – 4 origin 55 – 6 principle based on 60 – 74 proper way of dealing in insurance law 85 – 7 proportionality principle 72 – 4 public conscience test 60 – 2 public policy, and 56 , 60 – 2 reliance principle 64 – 5 seriousness of illegal conduct 69 – 72 specifity of issue in motor insurance 87 – 9 illegality of performance 36 – 42 agent, and 40 – 1 control, and 37 – 8 formation 38 – 40 knowledge of assured 42 origin 36 – 42 scope 36 – 42 so far as the assured can control the matter 40 – 2 species 38 – 40 violation of common law and public policy 40 violation of King’s or Council’s order and licence 38 – 9 violation of statute 38 violation of treaties between nations 39 implied warranty 19 , 31 other than warranty of legality 20 – 4 Insurance Act 2015 161 – 75 application on warranty of legality 168 – 73 “basis of contract” clauses 174 breach of warranty 164 – 6 causal link and section 11 166 – 8 change of circumstances, and 169 change of law, and 169 effect of remedy of breach 171 market’s reaction on 173 – 175 P&I Club, and 174 random breach of warranty of legality 172 “risk has not been altered” 171 strict compliance with warranty 170 terms not relevant to actual loss, and 167 terms which define the risk as a whole, and 175 warranties 164 – 6 warranty of legality, and 161 – 75 intention of statute principle 74 Law Commission reform recommendations 161 – 4 rejection of casual connection test 173 lawful meaning 32 – 4 loading operation 35 – 6 marine insurance law of warranty 9 – 27 see also warranties development 10 – 16 origin 10 – 16 motor insurance specificity of illegality issue 87 – 9 New Zealand 158 – 9 warranty of legality issue 158 – 9 present warranty 19 proportionality principle 72 – 4 proportionate test 112 – 13 reform of section 41 4 – 5 reliance principle 64 – 5 , 106 – 7 return on premium 50 sail without licence or convoy 35 seaworthiness 21 – 4 section 41 Marine Insurance Act 1906 42 – 51 , 131 – 4 abolition of warranty of legality, proposal for 178 – 81 breach of warranty and loss 46 – 7 character and function of law, and 46 common law principles, and 179 – 80 exception, and 43 – 4 express terms, proposal for 177 insufficiencies 42 – 51 intention of law, and 45 intention of parties, and 44 – 5 nature of 131 – 4 post-contractual requirement 133 – 4 pre-contractual requirement 133 – 4 reform, need for 177 reform, Page 189 proposal for 177 – 83 specificity 138 – 9 technology advances, and 179 violation, statutory illegality and 132 – 3 warranty of legality as implied warranty 47 – 51 statutory illegality rules insurance, in 116 – 21 intention of assured 120 unauthorised insurer 116 – 20 strict compliance principle 11 – 12 , 49 tort illegality contract illegality distinguished 126 – 8 tort law illegality defence 55 – 90 unauthorised insurer 116 – 20 violation of common law and public policy 40 violation of King’s or Council’s order and licence 38 – 9 violation of treaties between nations 39 waiver of warranty 25 – 7 warranty of legality chaos of issue 1 – 2 common law illegality defence distinguished 131 – 41 development 1 importance of 48 intention of parties, and 49 other warranties distinguished 49 – 51 section 41 Marine Insurance Act 1906, and 42 – 51 waiver 49 warranties breach 13 causation 12 classifications 19 – 20 condition compared 47 – 8 construction 16 – 18 context 18 de minimis rule 11 – 12 definition 13 – 14 development 10 – 16 early development 10 – 11 exception, and 15 fundamental principles 11 Insurance Act 2015 164 – 6 intention of policy in commercial context 20 origin 10 – 16 sole description of risk 14 strict compliance principle 11 – 12 words of policy and 17 warranties in contract law 9 – 10 warranty of legality 21 current status 1 – 2 importance of 29 – 30 “lawful” 32 – 4 Marine Insurance Act 1906 29 origins 3 , 29 , 30 – 2 warranty of neutrality 21 warranty of seaworthiness 21 – 4

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