A Study On The Insurer's Right Of Contribution In Maritime Double Insurance

Marine double insurance refers to double insurance that two or more marine insurance contracts exist in.The legal relationship of marine double insurance consists of not only the insurance contract relationship between the assured and each insurer,but also the relationship between or among the insurers concerning contribution of liability for the loss suffered by the assured.In Chinese legal system,the direct provisions on double insurance can be found in Article 56 of the Chinese Insurance Law and Article 225 of the Chinese Maritime Code.They are slightly different in contribution between insurers.Any insurer who pays more than its ratable proportion of the loss under the Chinese Maritime Code,it is submitted that,is entitled to the right of contribution,while the Chinese Insurance law does not expressly stipulate such right.As far as application of law,relationship between the provisions on “Marine Insurance Contracts”,Chapter 12 of the Chinese Maritime Code,and provisions on the Chinese Insurance Law,shall be special law and general law.Therefore,Chinese Maritime Law shall be applied to marine double insurance prior to the Chinese Insurance Law.There is no doubt that the insurer's right of contribution shall be affirmed in marine double insurance.Whereas,provisions of double insurance under Chinese law are too brief in principle,and academic researches concerning this matter are focused on the validity and constituent elements of double insurance.There is few systematical study oncontribution between insures in double insurance.Without torts or contracts existing between insurers in double insurance,it is law that generates statutory contribution on the ground that each insurer has concluded an insurance contract with the same insured on the same insurance interest for the same loss caused by the same risk insured.Hence it is worth studying contribution between insurers.Consequently,the writer will comb the legal relationship between insurers in marine double insurance,review the theory of double insurance,and introduce China's first case of marine double insurance contribution,for the purpose that contribution between insurers in marine double insurance can be better systematically studied.Why shall contribution be entitled to the insurer in marine double insurance?How shall it be exercised? What are effective defenses? We should focus on both double insurance legal system and contribution to give scientific answers to questions mentioned above.Apart from the introduction and conclusion,this paper is divided into five chapters,which are the legal nature of contribution in marine double insurance,sources of law and reasons for the establishment,exercise of contribution and contributing insurers' defense,some problems between contribution and subrogation or abandonment,and reflections and propositions on contribution in marine double insurance.The contents of each chapter are briefly summarized as follows.The first chapter of this paper first combs the legal relationship of marine double insurance.Standing in the shoes of insurers,it is divided into the external and internal relation.Then the first case of contribution in marine double insurance in China,“Portuguese Loyal Insurance Co.,Ltd.v.Starr Property Insurance Co.,Ltd.”,is introduced to observe the judicial attitude of contribution between insurers in marine double insurance.Eventually,by analyzing the legal nature of contribution in marine double insurance,it can be safely concluded that contribution is a right of claim,and any insurer who pays more than his proportion of the loss shall be defined as subject of right and any insurer who is sought to contribution as subject of duty.The second chapter of this paper illustrates sources of law and reasons for establishment of contribution.As far as sources of law,this paper pursues two routes,Chinese legislation and English Common law.Subsequently,account for rationality by analyzing the relationship between contribution and jointly responsibility,united with legislation of values on contribution in marine double insurance.The third chapter of this paper is to study exercise and defense of contribution in marine double insurance.This chapter solves problems how contribution shall be exercised,what constituent elements contribution shall consist of and what scope shall it be,and then enumerates effective defenses of contribution,such as contributing insurers are not responsible for the loss of the assured,time limitation and the terms of double insurance in the insurance contract.Lastly,this chapter introduces three methods of contribution calculation,the maximum liability method,the independent liability method,the common liability method.The fourth chapter of this paper ponders over some problems concerning subrogation and abandonment.It solves whether there shall be a sequence when the insurer exercises contribution and subrogation and figures out some problems between contribution and abandonment existing in marine double insurance.The fifth chapter of this paper offers some suggestions for improvement of contribution in marine double insurance.Firstly,clarify differences between Chinese Maritime Law and Chinese Insurance Law,mainly discussing notification obligation in double insurance and the aggregate amount to be indemnified to the insured.Secondly,discuss the applicable law and jurisdiction over the matter.In summary,the purpose of this paper is aimed at exploring legal nature of contribution right of the insurer who pays more than his proposition of the loss in marine double insurance,illustrating its sources of law,analyzing reasons for its establishment,and further studying its exercise and defense.