• Journal of Korea Trade
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• v.25 no.2
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• pp.152-177
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• 2021

Purpose - This study analyses the excepted requirement and burden of proof of the carrier due to unseaworthiness through comparison between the marine transport contract and marine insurance contract. Design/methodology - This study uses the legal analytical normative approach. The juridical approach involves reviewing and examining theories, concepts, legal doctrines and legislation that are related to the problems. In this study a literature analysis using academic literature and internet data is conducted. Findings - The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. In other words, the insurer cannot escape coverage for unfitness of a vessel which arises while the vessel is at sea, which the assured could not have prevented in the exercise of due diligence. The insurer bears the burden of proving unseaworthiness. The warranty of seaworthiness is implied in hull, but not protection and indemnity policies. The 2015 Act repeals ss. 33(3) and 34 of MIA 1906. Otherwise the provisions of the MIA 1906 remain in force, including the definition of a promissory warranty and the recognition of implied warranties. There is less clarity about the position when the source of the loss occurs before the breach of warranty but the actual loss is suffered after the breach. Nonetheless, by s.10(2) of the 2015 Act the insurer appears not to be liable for any loss occurring after the breach of warranty and before there has been a remedy. Originality/value - When unseaworthiness is identified after the sailing of the vessel, mere acceptance of the ship does not mean the party waives any claims for damages or the right to terminate the contract, provided that failure to comply with the contractual obligations is of critical importance. The burden of proof with regards to loss of damage to a cargo caused by unseaworthiness is regulated by the applicable law. For instance, under the common law, if the cargo claimant alleges that the loss or damage has been caused by unseaworthiness, then he has the burden of proof to establish the followings: (i) that the vessel was unseaworthy at the beginning of the voyage; and that, (ii) that the loss or damage has been caused by such unseaworthiness. In other words, if the warranty of seaworthiness at the inception of the voyage is breached, the breach voids the policy if the ship owner had prior knowledge of the unseaworthy condition. By contrast, knowingly permitting the vessel to break ground in an unseaworthy condition denies liability only for loss or damage proximately caused by the unseaworthiness. Such a breach does not, therefore, void the entire policy, but only serves to exonerate the insurer for loss or damage proximately caused by the unseaworthy condition.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.137-169
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• 2013

This article intends to analyse some features in Exclusion Clauses of the Institute Cargo Clauses 2009 and the results of analysis are following. First, the insufficiency of packing or preparation exclusion under the revised Clause 4.3 is now more limited than before and the Clause suggest the test of sufficiency or suitability "to withstand the ordinary incidents of the insured transit". Secondly, the word "proximately" was deleted under the revised Clause 4.5 for the insurer to be identified more easily as a cause, but it remains to be seen whether that re-drafting will be successful. Thirdly, The exclusion under the revised Clause 4.6 does not apply unless the insurer can prove that, at the time the subject-matter insured is loaded on board the vessel, the assured was aware, or in the ordinary course of business should have been aware, that the relevant insolvency or financial default could prvent the normal prosecution of the voyage, and to a person who purchase the goods from the assured in good faith under a binding contract. Fourthly, the exclusion in respect of unseaworthiness of vessel under Clause 5.1.1 applies only where the assured is privy to the unseaworthiness, whereas the exclusion in respect of unfitness of container or conveyance under Clause 5.1.2 includes the privity of the employee. Finally, Clause 7 establishes the definition of terrorism, and adds ideological and religious motive to political motive.

• Journal of Fisheries and Marine Sciences Education
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• v.6 no.1
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• pp.45-57
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• 1994

One of the fundamental duty of the assured in a marine insurance contract is maintaining seaworthiness of the ship insured. Since duty of the seaworthiness of ship is a shipowners implied warranty in the marine insurance, the breach of the duty of seaworthiness by assured is recognized as immunity for the underwriter. This is a measure to protect the underwriter through prevention of unexpected casualties which may be occurred from the unseaworthiness. In the Korean Marine Insurance Act the legal character of the assured's duty of seaworthiness is not clear whether it is a legal duty or contracted one. Accordingly, in this paper the author pointed out that the duty of seaworthiness of the ship should be interpreted according to the English Law. As a conclusion, the hull insurance does not require even implied warranty concerning seaworthiness, since it is recognized as one of implied fundamental warranty of the English Marine Insurance Act. Especially, this issue pointed out is very meaningful and advisable under the consideration of the existing conditions of the marine insurance regime for the distant-water fishing vessels and the catch carriers in Korea.

• Journal of Korea Port Economic Association
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• v.22 no.2
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• pp.83-108
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• 2006

Regarding the ocean carrier's responsibility for damage indemnification, both his or her duty of care and reason of legal exemption have been considered important. The International Convention for the Unification of Certain Rules relating to Bills of Lading also provides that the ocean carrier indemnifies for the loss or damage of freight on the basis of the principle of liability with fault. In other words, the carrier assumes responsibility only for the loss or damage of freight which is under his or her control and whose safety must be carefully maintained by him or her. The carrier's duty of care which is required for freight safety in accordance with the convention is associated with two themes, seaworthiness of vessel and freight itself. To make ocean freight shipping effective necessities the seaworthiness of the ship that will conduct the shipping service under its responsibility. This will ultimately lead to making the service impressive to the shipper as freight owner. Thus the purpose of this study is to contribute to more reasonable shipping by the shipowner or the carrier who needs to ensure seaworthiness of vessel, and prevent unseaworthiness that may be incurred in accordance with freight characteristics. For the purpose, this paper reviewed the meaning of seaworthiness of vessel through a juridical approach to its causal relationship with ocean freight shipping.

• Journal of Korea Port Economic Association
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• v.21 no.4
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• pp.121-139
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• 2005

The case, Papera Traders Co. Ltd. and Others v. Hyundai Merchant Marine Co. Ltd and Another(The Eurasian Dream), was occurred on July, 1998 when the ISM Code became mandatory under SOLAS and from that date it applied to oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high-speed craft of 500 gross tonnage and above. On July 23, 1998, a fire started on the deck of pure car carrier Eurasian Dream while in port at Sharjah. The source of fuel was the stevedores action of pouring petrol or transferring fuel in some way - refueling or pouring into a carburettor. The fire eventually destroyed or damaged the vessels cargo of new and second-hand vehicles and rendered the vessel itself a constructive total loss. Justice Cresswell held that the fire that destroyed or damaged the cargo was due to the unseaworthiness of the vessel they have the burden of proving that the vessel was unseaworthy before and at the beginning of the voyage and that the loss or damage was caused by that unseaworthiness. This case was a dispute between dependent and claimant alleging that the carrier should provide "properly man, equip and supply the ship and keep the ship so manned" under Hague-Visby Rules. Although ISM code was not officially applied to the carriage by car carriers until July 2002, a rule based on the code had customarily been employed as a mean for international dispute resolution. Examining the above case closely, the purpose of this study is to explore the relation of ship management and obligation to exercise due diligence in making the vessel seaworthy.

• The Journal of Information Technology
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• v.8 no.2
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• pp.27-42
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• 2005

The S.G. Policy form contains the words "the good ship or vessel called the.....". The words "good ship" mean that the ship is deemed to be seaworthy at the commencement of the voyage and this was very necessary in the day when a separate policy was issued for each voyage. In fact the warranty do seaworthiness still applies to all voyage policies. Nevertheless, the law does not apply an absolute warranty of seaworthiness to a time policy, so a ship is not required to be seaworthy at the time the hull policy is effected. The implied warranty of seaworthiness does not extend to good, for the underwriter is not responsible for their condition, apart fro the action of the perils insured against. The implied warranty of seaworthiness is limited to the vessel herself, and does not extend to a lighter or other craft used to convey the goods to the ship. The underwriters waive any breach of the implied warranties of the seaworthiness of the ship and fitness of the ship to carry the subject-matter insured to destination, unless the assured or their servants are privy to such unseaworthiness of unfitness.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.275-295
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• 2009

After a long period of development and worldwide consultation, the London-based Joint Cargo Committee has revised the Institute Cargo Clauses (A), (B) & (C) and some ancillary Institute Clauses. The revision mainly include a clarification of the exclusions within the clauses, some modernization of the language of the clauses and new definitions of some terms. With these revisions, the coverage is widened to offer more protection to the assured. This may enable the widely used Institute Cargo Clauses to receive even greater worldwide acceptance. The following are the main changes in the new 2009 ICC compared with the 1982 ICC. 1. Insufficient or unsuitable Packing or Preparation(Clause 4.3): The revised clause is more favourable to the assured because under the revised clause this sub-clause is only applicable to (a) where packing or preparation is carried out by the assured or their employees or (b) packing or preparation takes place before the attachment of the risk. 2. Insolvency or Financial Default (Clause 4.6): The insolvency and financial default wording is incorporated in the revised clauses, making it more favourable to the assured. 3. Unseaworthiness (Clause 5): The revision is more favourable to the assured in that it limits the exclusion in relation to the unfitness of vehicles, vessels or containers to cases where the assured or their employees are privy to such unfitness. 4. Terrorism (Clause 7): A new definition of "terrorism" is introduced and the revised clause also widens the acts of an individual to encompass ideological and religious motives.