Name

Subject
Topic
Register Number

Date of Submission

Kamalambikai.K
Law Of Insurance
Warranty In Marine Insurance
HB13022
11/04/2016

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Warranty In Marine Insurance

Table Of Contents

Introduction
Nature Of Warranty
What is Warranty
When Breach Of Warranty Excused
Types Of Warranty
Express Warranty
Implied Warranty
Warranty of seaworthiness of ship
Illegality
Conclusion
Bibliography
Books Referred
Websites Referred

Warranty In Marine Insurance

Introduction:

A peculiarity of marine insurance, and insurance law generally, is the use of the
terms condition and warranty. In English law, a condition typically describes a part of the
contract that is fundamental to the performance of that contract, and, if breached, the nonbreaching party is entitled not only to claim damages but to terminate the contract on the basis
that it has been repudiated by the party in breach.
The law of warranties in relation to Marine Insurance at first glance appears to be
extremely beneficial to insurers and, some might say, unfair to assureds. The black letter law is
that a breach of a warranty entitles the insurer to avoid liability under the policy even if the
breach of warranty had nothing to do with the loss and regardless of whether the warranty was
material to the risk. This was often the result in many of the older cases.

Nature Of Warranty.
(1) A warranty, in the following sections relating to warranties, means a promissory warranty,
that is to say a warranty by which the assured undertakes that some particular thing shall or shall
not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the
existence of a particular state of facts.
(2) A warranty may be express or implied.
(3) A warranty, as above defined, is a condition which must be exactly complied with, whether it
be material to the risk or not. If it be not so complied with, then, subject to any express provision
in the policy the insurer is discharged from liability as from the date of the branch of warranty
but without prejudice to any liability incurred by him before that date.

1. Sec 35 of the Marine Insurance Act of 1963.

What Is Warranty:
Section 35 of India marine insurance act 1963 and section 33 of UK marine
insurance act 1906 defines a warranty as a promissory warranty, that is to say a warranty by
which the assured undertakes that some particular thing shall or shall not be done, or that some
condition should be fulfilled, or whereby he affirms or negates the existence of a particular state
of facts. It means an undertaking by the assured that some particular thing shall or shall not be

done, or that some condition shall be fulfilled, or he affirms or negatives the existence of
particular state of facts.
A warranty, as above defined, is a condition which must be exactly complied with,
whether it be material to the risk or not. If it be not so complied with, then, subject to any express
provision in the policy, the insurer is discharged from liability as from the date of the breach of
warranty, but without prejudice to any liability incurred by him before that date. These statutory
provisions seem remarkably clear and unambiguous, however, as we shall see, the case law has
had the effect of considerably narrowing the situations where an underwriter can avoid liability
for breach of a warranty.
A Warranty may be expressed or implied. The effect of warranty is that it becomes a
condition of the contract and, therefore must be exactly complied with, whether the fact
warranted is not material or not. If it is not complied with, the insurer is discharged as from the
date of breach. The discharge will also be the subject to any contrary provision of the Act.

When Breach Of Warranty Excused2:

1. Noncompliance with a warranty is excused when, by reason of a change of
circumstances, the warranty ceases to be applicable to the circumstances, of the contract,
or when compliance with the warranty is rendered unlawful by any subsequent law.
2. Where a warranty is broken, the assured cannot avail himself of the defense that the
breach has been remedied, and the warranty complied with, before loss.
3. An express warranty does not exclude implied warranty unless it be inconsistent
therewith.

2. Section 36 of the Marine Insurance Act of 1963.

Types Of Warranty:
Marine insurance consist of several warranties. A warranty means a stipulation upon
which the fulfillment of the very contract depends. It is an undertaking by the insured to the
insurer that something shall or shall not be done or some conditions are to be fulfilled. Since it is
undertaking of the insured, he should abide by the warranty and any breach of warranty will
discharge the insurer from any liability.

In the insurance contract, it is found in the form of a condition which must be

complied with. When these conditions are not attained by the insured, the insurance contract
becomes avoidable at the option of the insurer.
Warranties are of two types like express warranties and implied warranties.

Express Warranty:
Express warranties3.
(1) An express warranty may be in any form of words from which the intention to warrant is to
be inferred.
(2) An express warranty must be included in, or written upon, the policy, or must be contained in
some document incorporated by reference into the policy.
(3) An express warranty does not exclude implied warranty, unless it be inconsistent therewith.

"An express warranty may be in any form of words from which the intention to
warrant may be inferred."
This implies that creation of a warranty is a simple matter of choosing the
appropriate policy wording. The real difficulty is, however, in choosing that policy wording.
Further, in many cases even choosing the correct wording may not result in a warranty being
created.
A review of little more than a statement of fact was required to create a true
warranty in a policy of marine insurance. For example, the following words were held to create
warranties(1): "to sail on such a day"; "declarations of interest to be made as soon as possible
after sailing"; and "a Danish Brig".

3. Section 37 of the Marine Insurance Act of 1963.

An express warranty may be in any form of words from which an intention to

warrant may be inferred. All that the Act requires is that an express warranty must be written
upon the policy or upon some document incorporated by reference into the policy. The Act also
says that an express warranty will not exclude an implied warranty unless it is inconsistent there
with.

There are a number of express warranty in marine insurance like warranty of

neutrality during war, institute warranty etc. But a common example with reference to H&M
policy being a warranty that the vessel is classed with a particular society and that her class will
be maintained. The wording is likely to be, for example " warranted LR classed and class
maintained".

Implied Warranty:
Warranty of neutrality4.
(1) Where insurable property, whether ship or goods, is expressly warranted neutral, there is an
implied condition that the property shall have a neutral character at the commencement of the
risk, and that, so far as the assured can control the matter, its neutral character shall be preserved
during the risk.
(2) Where a ship is expressly warranted neutral, there is also an implied condition that, so far
as the assured can control the matter, she shall be properly documented, that is to say, that she
shall carry the necessary papers to establish her neutrality, and that she shall not falsify or
suppress her papers, or use simulated papers. If any loss occurs through breach of this condition,
the insurer may avoid the contract.

The warranty of neutrality is not really an implied warranty as it applies only when
there is an express warranty of neutrality with respect to insurable property. It merely defines and
delimits the express warranty of neutrality.
The implied warranties of seaworthiness and legality are, however, true implied
warranties in that their existence is assumed at law and they will form part of any contract of
marine insurance unless inconsistent with an express warranty.

4. Section 38 of the Marine Insurance Act of 1963.

These are not written in the policy but are implied by the law to exist in the contract.
They must be strictly complied with in the same way as expressed warranties. Where the subject
matter of insurance, whether it be ship, or goods, is expressly warranted to be neutral, there is an
implied condition that the property shall have the neutral character at the commencement of the
risk, and that as far the assured can control the matter, its neutral character shall be preserved

during the risk. If any loses occurs through the breach of this condition, the insurer may avoid
the contract.
There is no implied warranty as to the nationality of a ship or that her nationality
shall not be changed during the risk5.
When the subject matter insured is warranted "well" or "in good safety" on a
particular day, it is sufficient if it is safe at any time during that day6.
There are two major implied warranties in marine insurance policies covering
seaworthiness and legality.

Warranty of seaworthiness of ship7.

(1) In a voyage policy there is an implied warranty that at the commencement of the voyage the
ship shall be seaworthy for the purpose of the particular adventure insured.
(2) Where the policy attaches while the ship is in port, there is also an implied warranty that she
shall, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the
port.
(3) Where the policy relates to a voyage which is performed in different stages, during which the
ship requires different kinds of or further preparation or equipment, there is an implied warranty
that at the commencement of each stage the ship is seaworthy in respect of such preparation or
equipment for the purposes of that stage.
(4) A ship deemed to be seaworthy when she is reasonably fit in all respects to encounter the
ordinary perils of the sea of the adventure insured.

5. Section 39, No implied warranty of nationality, Marine Insurance Act of 1963.

6. Section 40, Warranty of good safety, Marine Insurance Act of 1963.
7. Section 41 of Marine Insurance Act of 1963.

(5) In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of
the adventure, but where, with the privities of the assured, the ship is sent to sea in an
unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.

The implied warranty of seaworthiness applies with full effect only to voyage
policies. The warranty is that the ship will be seaworthy "at the commencement of the voyage"
for the particular adventure insured. A seaworthy ship is one that is "reasonably fit in all respects
to encounter the ordinary perils of the adventure insured". In a time policy there is no warranty
of seaworthiness but "where, with the privity of the assured, the ship is sent to sea in an
unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness".
Thus, in a voyage policy the insurer needs to prove only one thing; that the ship
was unseaworthy at the commencement of the voyage. In a time policy, on the other hand, the
insurer needs to prove three things; that the ship was unseaworthy, that the unseaworthiness
caused the loss, and that the assured was privy to the unseaworthy state of the ship.
The warranty of seaworthiness relates not only to the hull but also to the machinery
and equipment, the crew, and the way in which a ship is loaded (or overloaded).

No implied warranty that goods are seaworthy8.

(1) In a policy on goods or other movable there is no implied warranty that the goods or
movables are seaworthy.
(2) In a voyage policy on goods or other movables there is an implied warranty that at the
commencement of the voyage the ship is not only seaworthy as a ship, but also that she is
reasonably fit to carry the goods or other movables to the destination contemplated by the policy.

The implied warranty of seaworthiness often has to be interpreted together with an

inch mere clause which provides coverage for any latent defect in hull or machinery. Whenever a
loss is caused by any such latent defect it is almost certain that there would be coverage
notwithstanding that the same defect could be a breach of the implied warranty of
seaworthiness.

8. Section 42 of the Marine Insurance Act of 1963.

With reference to H&M policy, if the policy is voyage policy, there is an implied
warranty that at the commencement of the voyage, the ship shall be seaworthy for the purpose of
particular adventure. Defining Seaworthiness, the section says that the ship shall be deemed to be
seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the sea for
adventure insured.

But if it is a time policy, there is no implied warranty that the ship shall be
seaworthy at any stage of adventure but where, with the privity of the assured , the ship is sent to
the sea in an unseaworthy state, the insurer is not liable for any loss attributable to
unseaworthiness.

For Example, if a ship were sent on a voyage with the defective equipment and
subsequently during the course of the voyage became unseaworthy in some wholly different
aspect which caused her loss, according to the respondents contention the assured could not
recover.

Illegality:

Warranty of legality9.There is an implied warranty that the adventure insured is a lawful one,
and that, so far as the assured can control the matter, the adventure shall be carried out in a
lawful manner. The warranty of legality is one which is often expressly included in policies as
well as implied. Where there is an express warranty of legality it will have precedence over the
implied warranty to the extent the two are inconsistent.

There is an implied warranty that the adventure insured is a lawful one and that, so
far as assured can control it, the adventure will be carried out in a lawful manner.

9. Section 43 of the Marine Insurance Act of 1963.

The warranty of legality was also considered in Federal Business Development

Bank v Reinsurance and Excess Managers Ltd 10. That case involved a tugboat that sank while
towing a jet boat loaded with cedar shingles that had been illegally taken from the cutting site
without being scaled. The Court declined to find that this technical breach of the Forestry Act
discharged the insurer from liability as the assured was not deliberately acting in an unlawful

manner and the failure to have the shingles scaled did not bear a direct relationship to the cause
of the loss.

Conclusion:
Recent developments in the law in relation to warranties in policies of marine
insurance indicate that there has been a judicial amendment of, if not complete revocation of the
Marine Insurance Acts. These circumstances will essentially be limited situations where the
warranty is material to the risk and the breach has a bearing on the loss.

Bibliography:
Books Referred:

Avatar Singh, Law Of Insurance, Second Edition, Eastern Book Company.

Myneni.S.R., Law Of Insurance, Allahabad Law Agency.

Websites Referred:

www.admiraltylaw.com
www.publishyourarticles.net/
www.wikipedia.org
www.tunnel2funnel.com

10. (1979) 13 BCLR 376