| Marine insurance has a long history. It has established a series of marine insurance usual practice, laws and regulations. All of these have met the needs of marine insurance and promoted the development of marine insurance industry. The rights and obligations of the marine insurance parties are provided in the insurance contracts. The main content of the contract is the liability clauses and exclusion clauses. That's to say that the insurer should be liable or not for the damage of the insured in what kind of situations. The insured party always wishes to get indemnified completely by the insurer when the loss occurs. However, the insurer wishes to indemnify the insured according to the liability and exclusion clauses basing on the law of large numbers. This will undoubtedly lead to the litigation or arbitration due to the conflict of viewpoints and interests between the insurer and the insured. So the disputes have to be settled by legal means.Before the enactment of the Insurance Law of the PRC,1995,the marine insurance disputes were settled according to the Maritime Code of the PRC,1993and the Regulations of General Insurance Contracts,1983. These two laws and regulations have no provisions about the effectiveness of the exclusion clauses. So before the enactment of the Insurance Law of the PRC,1995, maritime law circle had no legal practice relating to the form ineffectiveness of the exclusion clauses and no debate about the form effectiveness of the exclusion clauses. In fact, the exclusion clauses were certainly regarded as the effective clauses of the contract. When there were any disputes relating to the understanding of the exclusion clauses, the court would construe the exclusion clauses according to the construction principles of the insurance contract and came to the conclusion whether the exclusion clauses should be applied to the disputed cases or not.However, there were provisions relating to the effectiveness and ineffectiveness of the exclusion clauses after the enactment of the Insurance Law of the PRC,1995and the Law of Contracts of the PRC,1999. The marine insurance contracts are regulated by the Maritime Code of the PRC. If there were no provisions in the Maritime Code, the Insurance Law should be applied to. The Maritime Code has no provisions about the effectiveness of the exclusion clauses. So the Insurance Law should be applied with regard to the effectiveness of the marine insurance exclusion clauses. This has enormous impact on the traditional effectiveness of the marine insurance exclusion clauses. The Insurance Law of the PRC mainly regulates inland life insurance and property insurance. Is it suitable to apply the Insurance Law to the marine insurance? If it's not suitable, how should we do with it? This is a big problem and must be dealt with by maritime law and theory circle.This paper studied and discussed the issues relating to the effectiveness of marine insurance exclusion clauses appearing in the maritime legal practice. It aimed to solve the big trouble bothering the maritime law, theory and insurance circles all the time and promote the healthy development of marine insurance industry. This paper has four chapters besides prologue and conclusion.The first Chapter is the introduction to the marine insurance exclusion clauses. It aims to let the readers have an overall knowledge about the definition, the reason of existence, the characteristics of the marine insurance exclusion clauses. It also points out that the exclusion clauses should be studied from the distinctiveness of marine insurance and relatively independent legal system of marine insurance exclusion clauses should be established. After having analyzed and compared the current laws of our country about general exclusion clauses and insurance exclusion clauses, this chapter points out that there is no regulations about marine insurance exclusion clauses in Maritime Code of our country. So the applicable law for marine insurance exclusion clauses is the Insurance Law of the PRC. This impacts the marine insurance industry generally. So it's necessary to study the marine insurance exclusion clauses from the particularity of the Maritime Code of the PRC. This would have great significance for the people to properly understand and apply the marine insurance exclusion clauses, promote the healthy development of marine insurance industry as well.The second Chapter proposes that the scope of marine insurance exclusion clauses should be defined. Having taken the consideration of big disputes about the marine insurance exclusion clauses, this chapter discussed the deductible, franchise, liability limitation, exclusion, warranty clauses etc.. It also discussed whether all these clauses are within the scope of marine insurance exclusion clauses. Only after having defined the scope of marine insurance exclusion clauses, they could be apllied to reasonably. After having analyzed the exclusion clauses provisions of the Law of Contracts of the PRC,the Insurance Law of the PRC, the Maritime Code of the PRC,the main marine insurance clauses home and abroad and the attitude of different level of the Chinese courts as to the exclusion clauses, this paper pointed out that the confusions and disputes arise due to the lack of clear definition of marine insurance exclusion clauses by laws and regulations. So it's necessary to define the scope of marine insurance exclusion clauses reasonably from the particularity of the maritime law and marine insurance.The third Chapter studied the form of marine insurance exclusion clauses from the particularity of the maritime law. This chapter analyzed and studied the form from the angle of Insurance Law of the PRC, the Law of Contracts of the PRC, discussed how to fulfill the obligation of reminder and explicit explanation as to the exclusion clauses. Then it went on analyzing the current situation of the form effectiveness, the existed disputes of the marine insurance exclusion clauses, the laws and regulations of other countries (regions) regarding the form effectiveness of marine insurance exclusion clauses. It pointed out to make new rules of reminder and explicit explanation according to the different situation by separating commercial activities from personal non-commercial activities with reference of foreign advanced legislation. Finally, it put forward suggestions to improve the new regime to regulate the form of marine insurance exclusion clauses.The fourth Chapter studied the content of marine insurance exclusion clauses from the particularity of the maritime law. After having analyzed the current situation and existed disputes of the content of marine insurance exclusion clauses, this chapter pointed out that the effectiveness of the content of marine insurance exclusion clauses should be determined from multi-angle.The chapter also pointed out the general rules to construe the marine insurance exclusion clauses and making the construction rules of marine insurance exclusion clauses reasonably.It discussed the consequence of the ineffectiveness of the content of exclusion clauses and put forward the viewpoints to revise and improve the content of exclusion clauses, reasonably make the construction rules of marine exclusion clauses and properly apply the marine insurance exclusion clauses in order to reduce the marine insurance disputes, promote the healthy development of marine insurance industry and protect the legal rights of marine insurance parties equally. |
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