Modern Law of Marine Insurance Volume Five, The

Professor D; Rhidian Thomas

Document

Page 322

Index

Adjudication by directors 3.108–3.114
Admiralty jurisdiction 1.67, 4.22–4.25
Adverse costs 1.40, 1.58–1.60
After-the-event (ATE) insurance
- in Australia 1.3, 1.4
- litigation funding 1.17–1.31
- maritime class actions 1.7–1.16
- policy indemnity limit 1.2
- role of 1.32–1.36
- security for costs 1.37–1.51
- settlement or judgment 1.52–1.65
All-risks principle 9.11, 9.59
Anti-suit injunction
- English courts 3.155
- foreign proceedings 3.159
- post-Brexit 10.88–10.70
- quasi-contractual anti-suit injunction 10.95
Appointed Representatives 4.3; see also Marine insurance brokers
Association of British Insurers (ABI) 6.34, 6.35
Association of Litigation Funders (ALF) 1.27
Association of Litigation Funders of Australia (ALFA) 1.27
Australian Competition and Consumer Commission (ACCC) 4.37, 4.51
Australian Financial Services Licence (AFSL) 1.26, 4.17, 4.20
Australian Insurance Contracts Act 1984 7.1
Australian Law Reform Commission (ALRC) 1.31, 1.32, 1.36
Australian Securities and Investment Commission (ASIC) 4.3, 4.18
Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act) 1.26
Authorised Representatives 4.3; see also Marine insurance brokers
Autonomous shipping 2.3
- and fundamental insurance law principles
  - good faith 2.6–2.11
  - legality 2.16
  - seaworthiness 2.12–2.15
- software technology 2.4
Award damages 5.29, 5.48

Balance Legal Capital (BLC) 1.17

BGP (Bennett Gould & Partners Ltd) 4.3

Breach of duty 3.145, 5.13, 5.19, 5.20

Breach of warranty 7.10, 7.35, 7.46

Broker's duty see also Marine insurance brokers

Australia 4.17–4.20
conflicts of interest 4.32–4.40
disclosure of commission 4.32–4.40
England and Wales 4.6–4.10
- chains of brokers 4.11–4.16
USA 4.21–4.31

Certificate of Entry 3.5, 3.10

Civil Procedure Act 2010 (Vic) (CPA) 1.44, 1.45

CL380 (The Institute Cyber Attack Exclusion Clause) 2.17

Claim for compensation 9.50, 10.127

Claim handling 2.38

Claiming against the club

claims process 3.92–3.96
consequences of breach 3.102–3.104
time limit for making claims 3.97–3.101

Class action litigation funding schemes 1.29

Common fund order (CFO) 1.60

Concurrent causes 8.2

Consumer Credit Code 1.26

Consumer Insurance (Disclosure and Representations) Act 2012 6.33

Contempt of court

auxiliary remedies 6.48
for false statements 6.25, 6.26

Convoy Act 1798 7.6

Corporations Act 2001 1.26

COVID-19 1.7, 1.8, 1.16, 8.30

Criminal standard 6.18

Cyber vulnerabilities 2.9

Direct claims against clubs

claim 3.16–3.18
dominus litis 3.80–3.91
managerial powers of clubs 3.87–3.91
obligation
- to give notice 3.23–3.45
- of member 3.19–3.22
- nature of 3.75–3.79
- to notify club 3.53–3.79
- to notify managers 3.46–3.52
- proof of prejudice 3.72–3.74

Duty of utmost good faith 5.75; see also Utmost good faith bound

English law of fraudulent insurance claims see also Fraudulent insurance claims

The Federal Court of Australia's Class Action Practice Note (GPN-CA) 1.33

Financial Conduct Authority (FCA) 4.3, 4.6

Financial Ombudsman Service (FOS) 6.29, 6.30

Financial Services and Markets Act 2000 (UK) 6.28

Forfeiture rule 6.6, 6.11

Fraudulent insurance claims 6.4–6.14

auxiliary remedies 6.21–6.26
definition of 6.48
insurance litigation 6.41
legislative and regulatory intervention 6.39–6.53
policymaking 6.34–6.38
proportion of 6.26
regulation 6.27–6.31
from substance to procedure 6.15–6.20

Free of capture and seizure warranty 7.4

Good faith 2.6–2.11

concept of 6.7

Harbour Litigation Funding (HLF) 1.43

Insurability issue 2.3–2.5

insurability problem 2.4

Insurance Act 2015

legality, implied warranty of 7.65–7.70
seaworthiness 7.51–7.65
statutory provisions 7.36–7.50

Insurance: Conduct of Business (ICOBS) 4.6–4.8, 4.10, 4.11, 4.15, 4.16, 4.43, 4.52

Insurance Conduct of Business Sourcebook (ICOBS) 6.28, 6.31

Insurers see Fraudulent insurance claims

for claims 6.9
commercial 4.41
liability 7.41, 8.34
repeat-player litigations 6.20

International Group of Protection and Indemnity Clubs (IGP&I) 3.1

International Oil Pollution Compensation Fund 3.2

IT network 2.9, 2.10; see also Software technology

Jurisdictional rules

agreements 10.58–10.62
basic principle 10.8–10.23
contractual agreement 10.88
English agreement 10.80
favour of the English Court 10.24–10.49
German agreement 10.83
to marine insurance matters 10.4–10.7

Law Commission and the Scottish Law Commission 4.43

Law Commissions 8.10

Law of remedies

duty, development of 5.68–5.75
duty of disclosure 5.2, 5.3, 5.9
Insurance Act 2015 5.10, 5.11, 5.12, 5.13, 5.14
Law Commission 5.10
Marine Insurance Act 1906 5.6–5.7
utmost good faith bound 5.4, 5.5, 5.8
- avoidance, discretionary remedy 5.23–5.27
- breach of the duty 5.16–5.22
- damages, causes of action 5.31
- damages for breach of the duty 5.28–5.30
- deceit 5.32–5.34
- duty of care, damages for 5.35–5.41
- Misrepresentation Act 1967 5.42–5.48

Legality 2.16, 7.17–7.21

Legal principles, direct claims against clubs 3.17

Liability regime 2.34–2.37

Litigation funding 1.17–1.31

Amending Regulations 1.27–1.30
Australian Government policy 1.29
plaintiff 1.58, 1.59
regulatory environment, in Australia 1.27

Loss proximately 8.2; see also Proximate causes of loss

Managed investment scheme (MIS) 1.26

Marine Insurance Act 1906 (MIA 1906) 4.5, 7.1, 8.1

codification 7.22–7.25
legality 7.30–7.35
seaworthiness 7.26–7.30

Marine insurance brokers 4.1

Australia 4.5, 4.17–4.20
England 4.5, 4.6–4.16
financial services advisers 4.4
networks 4.3
payment of premium 4.41–4.49
role of 4.2, 4.3, 4.4
USA 4.5, 4.21–4.40
Wales 4.5, 4.6–4.16

Maritime class actions

COVID-19 1.7, 1.8, 1.16

MARPOL (Prevention of Pollution from Ships) 2.5

Meeth -style jurisdiction agreement 10.52

Members Board 3.14

Misrepresentation Act 1967 5.75

National Association of Insurance Commissioners (NAIC) 4.39

New Zealand Insurance Law Reform Act 1977 7.1

Nordic Marine Insurance Plan 2013 9.2, 9.4–9.10

foreign state, regulation of detainment by 9.11–9.20

Notice given see also Direct claims against clubs

claim under the insurance 3.28–3.32
incident 3.26–3.27
preconditions 3.25
provides 3.23–3.24

Obligations

broker's 4.8
quasi-contractual 10.22

One-shotter, analytical tools 6.5

Post-Brexit

anti-suit injunctions 10.70–10.88
arbitration agreement 10.89–10.94
basic principle 10.8–10.23
claim caught by 10.28–10.42
claims brought
- by assignees or subrogees 10.97–10.98
- victim pursuant to a direct right against the insurer 10.99–10.104
comity 10.105–10.110
English Court 10.24–10.27, 10.43–10.48
essential logic 10.111–10.115
exclusive jurisdiction 10.89–10.94
Hague Convention 10.49–10.57
inconsistent contractual claim 10.119–10.121
jurisdiction 10.4–10.7
proper forum 10.63–10.67
quasi-contractual anti-suit injunction 10.95, 10.128–10.133
quasi-contractual obligation 10.122
right obligations 10.96
separate contract 10.58–10.62
Times Trading 10.116–10.118

Post-contractual situation 6.8, 6.12

Pre-contractual paradigm 6.8, 6.12

Protection and indemnity (P&I) clubs 1.5

claiming against the club
- claims process 3.92–3.96
- consequences of breach 3.102–3.104
- time limit for making claims 3.97–3.101
direct claims against clubs
- claim 3.16–3.18
- dominus litis 3.80–3.91
- obligations of member 3.19–3.22
- obligation to give notice 3.23–3.45
- obligation to notify club 3.53–3.79
- obligation to notify managers 3.46–3.52
resolution of disputes 3.105–3.107
- adjudication by directors 3.108–3.114
- reference to arbitration 3.115–3.123
third-party direct rights of action 3.124–3.128
- foreign law: third-party direct rights of action 3.148–3.160
- international maritime liability conventions 3.138–3.147
- Third Parties (Rights against Insurers) Act 2010 3.129–3.137

Proximate causes of loss

“but for” test 8.42–8.51
concurrent causes 8.52–8.67
insured versus uninsured risks 8.65
legal context 8.20–8.30
MIA 1906 8.3–8.11
search for 8.12–8.19
unless otherwise agreed 8.31–8.41

Quasi-contractual anti-suit injunction 10.95, 10.128–10.133

Realign insurance cover

current state of play 2.17–2.18
cyber risks 2.32–2.33
new risks 2.19–2.33
residual insurance-related issues 2.34–2.39
- change in liability regime 2.34–2.37
- claim handling 2.38
- usage-based insurance 2.39

Remedies see also Law of remedies

bonus 6.53
compensatory 5.71
insurer's 5.10

Remedy of rescission 5.75

Remote control centres (RCC) 2.7, 2.12, 2.14

dealing with 2.26–2.31
location of 2.31
use of 2.9

Remote-controlled vessel 2.3, 2.11, 2.14, 2.34

Remote Control Operator (RCO) 2.12, 2.16, 2.19

misconduct of 2.30
negligence of 2.29

Repeat player, analytical tools 6.5

Rules of the North of England Club 3.1, 3.9, 3.18

Seaworthiness 2.12–2.15

autonomous shipping and fundamental insurance law principles 2.12–2.15
Insurance Act 2015 7.51–7.65
Marine Insurance Act 1906 7.26–7.30
time policies 7.13–7.16
voyage policies 7.8–7.12
warranty of 2.12, 7.8, 7.9, 7.10, 7.11, 7.13, 7.14, 7.28

Senior Management Arrangements, Systems and Controls sourcebook (SYSC) 4.36

Ship and Goods (SG) Policy 7.4

Software technology 2.4, 2.8

SOLAS (Safety of Life at Sea) 2.5

STCW (Standards of Training, Certification and Watchkeeping for Seafarers) 2.5

Team Tango case

Elephant's import of urea 9.37–9.51
factual background 9.21–9.26
foreign state, NP regulation 9.11–9.20
legal starting points 9.27–9.33
main submissions 9.21–9.26
marine peril 9.73–9.75
Nigeria, security situation in 9.34–9.36
Nordic Marine Insurance Plan 2013 9.4–9.10
peril or insured event 9.57–9.59
problem and overview 9.52–9.56
reflections 9.86–9.88
regulation of combination of perils 9.60–9.63
UK clauses 9.75–9.85
war peril or a marine peril 9.64–9.72

Terms of Business Agreement (TOBA) 4.43

Third-party direct rights of action 3.124–3.128

foreign law: third-party direct rights of action 3.148–3.160
international maritime liability conventions 3.138–3.147
Third Parties (Rights against Insurers) Act 2010 3.129–3.137

Third-party liability insurance 3.8

Third-party litigation funder 1.1, 1.17, 1.21, 1.28, 1.39

Treat customers fairly (TCF) 6.27

Utmost good faith bound 5.4, 5.5, 5.8

avoidance, discretionary remedy 5.23–5.27
breach of the duty 5.16–5.22
damages, causes of action 5.31
damages for breach of the duty 5.28–5.30
deceit 5.32–5.34
duty of care, damages for 5.35–5.41
Misrepresentation Act 1967 5.42–5.48

Warranty 7.2, 7.3, 7.4

breaches of 7.42–7.43
contractual 3.66, 5.43
convoy warranty 7.5, 7.6, 7.7
definition 7.4
of good safety 7.4
of legality 7.66–7.70
neutrality warranty 7.5
of seaworthiness 2.12, 7.8, 7.9, 7.10, 7.11, 7.13, 7.14, 7.28
type of 7.5

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