• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.15
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• pp.119-136
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• 2001

The purpose of this paper is to consider how to decide the cause of loss or damage to the transport goods when maritime accident occurs. In marine insurance, the underwriter is liable for any loss or damage proximately caused by a risk insured(MIA Art.55). So it is very important to determine the proximate cause of loss or damage to ascertain whether it is to be recoverable under the policy. But there is no definite conception or rule what is the proximate cause. It was left to the tribunal as a question of fact. In this paper, I will suggest the general rules to determine the proximate cause of loss or damage of the transport goods in marine insurance. First, in MIA 1906, there is the rule of proximate causation and it has been established the effective causation by cases since 1918. Second, in Institute Cargo Clauses(B) & (C), there are rules of considerably relaxed standards to determine the causation of loss of or damage using the "attributable to" and "caused by" basis. Third, it is noted, under the complex causation situation, there are difference basises to decide the liability of underwriters between the case of successive occurrence of single risk and the case of concurrent occurrence of several risks. Forth, in practice, it couldn't be ascertained the underwrier's liability by a definite rule and it should be fully considered the circumstances and conditions of the loss.

• Journal of the Korea Safety Management & Science
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• v.16 no.3
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• pp.307-316
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• 2014

In view of the increased threat arising terrorism, the International Maritime Organization(IMO) adopted the International Ship and Port Facility Security Code (ISPS Code) which attached to the SOLAS Convention. The ISPS Code requires a comprehensive set of measures to enhance the security of ships and port facilities. For example, a shipowner must obtain the International Ship Security Certificate(ISSC). If the carrying vessel has not ISSC, the ship may be detained by the contracting governments. The Joint Cargo Committee(JCC) in London adopted the Cargo ISPS Endorsement, in which the assured who knowingly ships the cargoes on a non-ISPS Code compliant vessel will have no cover. However, where there is no the Cargo ISPS Endorsement in a Marine Cargo Insurance Policy and the cargo is carried by a non-ISPS Code certified vessel, the legal problem is whether or not it would constitute a breach of an implied warranty of seaworthiness and/or an implied warranty of legality. The purpose of this article is to analyze the potential legal issue on the relations between non-ISPS Code compliant vessel and two implied warranties under Marine Insurance Act(1906) in U.K.

• The Journal of Fisheries Business Administration
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• v.43 no.1
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• pp.63-74
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• 2012

The Korean Conflict of Laws Act recently incorporated much of the European Union's recent revision in "EC Convention on the Law Applicable to Contractual Obligations (Rome 1980)"(hereinafter Rome Convention). With the revision of Rome Convention applied to contractual obligations,"Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)"(hereinafter Rome I) has taken effect on December 2009. Before the effectivation of Rome I, "Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)"(hereinafter Rome II) has come into effect on January 2009. This means the revision of certain rules and its practical implications need an in-depth study on governing law rules under Rome I which provides newly effected governing laws applicable to contractual obligations. Moreover, uniform choice of law rules on non-contractual obligations needs to focus especially on marine insurance contract. Where policy assignment and subrogation causes, how to decide the governing law which will be applied to the insurer as a third party? This article attempts to analyze emerging legal issues in legal regimes determining choice of law, especially those in international marine insurance contracts. This will help Korean practitioners to be dialed in legal affairs under English Law as the governing law in their contracts.

• Journal of the Korean Institute of Navigation
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• v.18 no.3
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• pp.51-79
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• 1994

Section 55 (1) of the Marine Insurance Act 1906 states that the insurer is liable for any loss proximately caused by a peril insured against but is not liable for any loss not proximately caused by a peril insured against. It is, therefore, essential to determine whether it is to be recoverable under the Marine Insurance Policy attaching the Institute Cargo or Hull Clauses. But a number of important losses are excluded from the policy by subsection 2 of the same section, unless the policy otherwise provides, although these losses are proximate causes of them. The purpose of this study is to investigate the meaning of proximate cause and excluded losses in the Act. The method of this study is a literature survey. In summary, (1) if the loss is considered to have been proximately caused by a certain peril, and the peril is insured against, the claim is recoverable, (2) if there are different causes resulting in separate losses, the claims recoverable will be those due to insured perils, (3) when the effective cause of the loss is established, remote causes can be ignored, (4) when causes of loss are combined, the claim is recovera-ble if the cause which is proximate in efficiency is an insured peril, (5) if there are two causes, equal in efficiency, the loss is recoverable if one of the causes is an insured peril, but always providing the other cause is merely an uninsured peril rather than a specific exclusion, (6) although certain losses are exclu-ded by section 55 (2) of the Act, with the exception of wilful misconduct of the insured, it is permitted for provision to be made in the policy to widen the terms to include such losses.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.21
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• pp.41-54
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• 2003

The MIA 1906 is a very important rule for the practitioner in Korea since it is often selected as the governing law under the contract of cargo insurance. And we are using both the S.G policy and the new MAR policy. The new MAR policy has the basically different form of cover compared with the S.G policy. So we are a little confused whether some risks are covered or not under the selected clauses. The author considers which risks are covered or not under the specific clauses and compares the Institute cargo clauses with the MIA 1906.

• Journal of Fisheries and Marine Sciences Education
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• v.26 no.5
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• pp.1044-1057
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• 2014

This study has seen about a indemnity system of fishery damage by natural disasters such as a problem and improvement methods of government aid system and system on accident insurance for cultured fishery products. Recently, in the situation that the demage of aquaculture industry caused by frequent typhoon resulted from global warming and abnormal changed of weather is nasty, the accident insurance for cultured fishery products is necessary to show its true quality and to protect fishers against natural disasters owing to the limitation of government's aid for them. However, The objects of accident insurance for cultured fishery products which is progress on, is too short to apply, so that it is absolutely insufficient to fulfill the demands of culturing fishermen. Therefore, It could be a certain preparation to magnify the range of object items of it and to convert the trial industry being adjusted to limited area into full scale industry to adjust over all nationally. Furthermore, This insurance is complicated and strict to join rather than other insurances. As it can be seen by examples that got in trouble, despite culturing fishermen applied to join the insurance, they took all demage because the insurance was not realized. So, It is hard to say that causes impute the responsibility of it to the authority of insurance, not culturing fishery. They should simplify the registration process, limit the period each registration process and consider a countermeasure to complete it. Concerning compensation for the loss, agriculture part is easier to investigate the loss due to remained dead crop damaged by natural disaster, meanwhile, in fishing part, especially in case of cultivation of fish, it is difficult to investigate the loss and demage because crops are blown all together with typhoon when it comes plus the facilities of them are also very old. Consequently to solve the problem needs more positive attitude as it is policy insurance.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.34
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• pp.77-108
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• 2007

The traditional name given to the insurance of third party liabilities and certain contractual liabilities which arise in connection with the operation of ships is protection and indemnity(P & I) insurance. P & I insurance is very different from traditional hull and machinery insurance in that shipowners' hull and machinery insurance is designed primarily to protect the assured against losses to his vessel, whereas P & I insurance seeks to indemnify an shipowner in respect of the discharge of legal liabilities he has incurred in operating his own vessels. This study is to examine the background of establishment of British P & I clubs md, therefore, the identity of P & I insurance. The present British P & I clubs are the remote descendants of the many small and local hull mutual insurance clubs that were formed by British shipowners in the end of 18th century. At that time, British shipowners were dissatified with the state of marine insurance market and, therefore, established clubs together in mutual hull insurance clubs. After the removal of the company monopoly in 1824, greater competition had a good effect on the rates, terms of cover and service offered by the commercial marine insurance market and by Lloyd's underwriters, and the hull clubs became less necessary and went into decline. The burden of British shipowners on liabilities to third parties was steadily increased after the middle of the 19th century, but the amount insured under hull policy was limited in the insured value of the ship. Eventually, the first protection club, that is, the Shipowners' Mutual Protection Society was formed in 1855. It was designed to like past mutual hull clubs, but to cover liabilities for loss of life and personal injury and also the collision risks excluded from the current marine policies, particularly the excess above the limits in hull policies. In 1870, the risks of liability for loss of or damage to cargo carried on board the insured ship was first awarded by the British shipowners. After 1874, many protection clubs formed indemnity club to cover the risk of liability for loss or damage to cargo. As mentioned above, British P & I clubs have been steadily changed according to the response of shipowners under the rapidly changing law of British shipowners' liability, and so on in the future.

• Journal of Korea Trade
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• v.25 no.5
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• pp.39-57
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• 2021

Purpose - This research uses ocean marine insurance (OMI) statistics, international emails, focus-group interviews, and surveys to fill the gap between the theory of behavioral insurance, particularly status quo bias (SQB), and the practice of OMI in Korea. The contractual forms of OMI, the oldest and most globalized form of commercial insurance, were developed in the UK as the Institute Cargo Clauses in 1906 and revised in 1963, 1982, and 2009. SQB has been academically explored, mostly in health insurance and the financial services sector, but never in OMI. Thanks to the availability of OMI statistics in Korea, we can conduct SQB research here for the first time in this field. Design/methodology - We show the existence of SQB in the OMI of Korea through Korean statistics between 2009 and 2018, email correspondence with experts in the UK, Germany, and Japan, focus-group interviews with Korean OMI underwriters, an in-depth interview with one underwriter, and a survey of 15 OMI insureds (company representatives). Findings - We find that Korean foreign traders rely on the old-type OMI contracts developed in 1963, whereas other industrialized countries use the newest type of OMI contract developed in 2009. With a simple loss ratio analysis during 2009-2018, we show that the behavior of insurers has little to do with rational profit maximization and is instead driven by irrational bias, as they forgo the more profitable contracts provided by the new clauses by keeping the old clauses. The consistent addiction to old types of contracts in the OMI market suggests strong SQB among Korean exporters, importers, bankers, or insurers, which we confirmed in our interviews and survey. Originality/value - This research has significant originality and academic value because it reports new findings with crucial implications for the development of efficient trade practices and policy. First, this research is based on actual statistics that have not been used in previous Korean research on OMI. Second, this research shows that all-risk OMI policies provide more value to insureds, in terms of coverage given premium, than partial coverage policies, which differs from arguments previously made in Korea. Third, this research reveals strong SQB in Korea, where foreign trade plays a pivotal role in economic growth. That bias could be attributable to uninformed traders, informed but idle insurers, or conservative bankers. Fourth, to further develop foreign trade, policy initiatives are needed to review the current practices of OMI contracts and move forward with the new contract forms. All of these findings and arguments are both new and important.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.17
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• pp.93-125
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• 2002

This paper aims to find a reasonable solvency margin system in non-life insurance industry and also to evaluate the appropriateness of the current solvency margin regulation system in Korea. The current solvency margin system in Korea, based on EU's solvency margin model, was introduced during the 1997 financial crisis. The solvency requirement is not based on non-life insurer's risk, but simply on written premiums. The current solvency margin for general insurance, such as fire, marine, and automobile insurance, is determined by the greater between a premium-based amount and a claim-based amount, where the premium-based solvency margin is calculated by multiplying the net written premium for the preceding year by the premium based solvency margin ratio. Also, the amount of solvency margin for long term insurance is set at 4% of the policy reserve of the long term insurance. Still, there exist many differences between the current solvency margin regulation system in Korea and EU's model. This paper focuses on the rationality of the solvency margin regulation system, and compares the current system in Korea with EU's model and the RBC(Risk Based Capital) system in U.S. and Japan. Finally, this paper suggests a more specific and reasonable solvency margin system to be developed in Korea.

• Korea Trade Review
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• v.45 no.5
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• pp.279-301
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• 2020

In the absence of any guidance under statutory law, such as the Rules for Construction of Policy, MIA 1906, judges should follow the general principles of interpretation that apply to all contracts. In simple terms, Contra Proferentem Rule means that if the contents of the terms and conditions are ambiguous, they are interpreted against the writer of the terms and conditions. In the Anglo-American Contract Law, the 'default rule' is an important judicial tool that can supplement defects in contract norms and reinforce the principle of private autonomy through gap-filling techniques related to the interpretation of contracts. In Korea, it is sometimes mentioned in case of precedent, and it has been established as a clear rule. This study analyzes the interpretation of terms and conditions is not in the form that the interpretation of other general contracts and other interpretation principles are valid, but contracts based on terms and conditions are also contracts, and as a general rule, the interpretation of terms and conditions is explained like the general contract interpretation.