A Legal Study On Seaworthiness In The Context Of Marine Insurance

Seaworthiness is a basic concept in maritime law,which runs through the areas of carriage of goods,and marine insurance.In marine insurance,seaworthiness of a ship is a detrimental factor to marine safety and ties tightly with the probability of losses on the incurrence of risks.Therefore almost every country stipulated seaworthiness in their domestic law or standard forms.If a ship was found unseaworthy,the underwriter could be entitled to turn down the claim from the insured.Based on different legal culture,civil law and common law countries have different systems in marine insurance,and a distinct legal consequence exists when it comes to the matter of unseaworthiness.In China,seaworthiness is stipulated in Chinese Maritime Code and standard forms such as Hull Insurance Clause PICC.However,there remains contradictory judgment in judicial practice.And the insurer has to bear on a heavy burden of proof.The concept of seaworthiness also changes in pace with the development of nautical science and ship construction.The standard of ship management was also raised by ISM code,which directly changed the way in court to check the seaworthiness of the ship.ISM code also makes seaworthiness not merely a concept in private law but also an important concept in public law.This article aims to analyze seaworthiness in the context of hull insurance,and brings advice to better the stipulation on seaworthiness to balance the interest between parties.This article is composed of five chapters.The first chapter focuses on the concept of seaworthiness,which should include seaworthy at the commencement of voyage and portworthiness in port.And then analyze the need to regulate seaworthy in marine insurance,i.e.its value in marine insurance.The second chapter studies the requirement of time in seaworthy.It first reveals the problems regarding to the time of seaworthy in China,which includes ambiguity of time and lack of requirement about portworthiness.And then it studied the relevant laws in the UK and Norway in a comparative way.The third chapter focuses on the legal nature of seaworthy.In judicial practice,seaworthy is regarded as an excluded liability by contract,excluded liability by law and implied warranty.And it studied the legal result of duty of presentation regarding to the clause of seaworthiness in insurance contract.The fourth chapter studies the burden of proof when the insurer rising the exclusion of unseaworthy.And it analyzed the impact of ISM code on proving unseaworthiness in our country.Then studied the concerning law in the UK and Norway comparatively.The conclusion is that in China the insurer bears a heavy burden of proof.The relevant regulation shall be changed so as that the insured bear the burden of causation between damage and unseaworthiness.The last chapter provides recommendation to the matter of seaworthy in Chinese marine insurance from two aspects,which includes defining the legal nature of seaworthiness in maritime insurance and modification on some aspects in law.