|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Consolidated Acts of Samoa 2011 |
SAMOA
Arrangement of Provisions
PART I
PRELIMINARY
PART II
MARINE INSURANCE
PART III
INSURABLE INTEREST
PART IV
INSURABLE VALUE
PART V
DISCLOSURE AND REPRESENTATIONS
PART VI
THE POLICY
PART VII
DOUBLE INSURANCE
PART VIII
WARRANTIES
PART IX
THE VOYAGE
PART X
ASSIGNMENT OF POLICY
PART XI
THE PREMIUM
PART XII
LOSS AND ABANDONMENT
PART XIII
PARTIAL LOSSES (INCLUDING SALVAGE AND GENERAL AVERAGE AND PARTICULAR CHARGES)
PART XIV
MEASURE OF INDEMNITY
PARTR XV
RIGHTS OF INSURER ON PAYMENT
PART XVI
RETURN OF PREMIUM
PART XVII
MUTUAL INSURANCE
PART XVIII
SUPPLEMENTAL
Schedule
1975 No.20
AN ACT to amend and consolidate the law relating to marine insurance.
[Assent date and commencement date: 23 December 1975]
PART I
PRELIMINARY
1. Short title - This Act may be cited as the Marine Insurance Act 1975.
2. Interpretation - In this Act, if not inconsistent with the context:
“action” includes counterclaim and set-off.
“freight” includes the profit derivable by a shipowner from the employment of the shipowner's ship to carry his or her own goods or movables, as well as freight payable by a third party, but does not include passage money.
“movables” means any movable tangible property other than the ship, and includes money, valuable securities, and other documents.
“policy” means a marine policy.
PART II
MARINE INSURANCE
3. Marine insurance defined. Mixed sea and land risks - (1) A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the assured, in manner and to the
extent thereby agreed, against marine losses that is to say, the losses incident to marine adventure.
(2) A contract of marine insurance may, by its express terms or by usage of trade, be extended so as to protect the assured against
losses on inland waters or on any land risk which may be incidental to any sea voyage.
(3) Where a ship in course of building, or the launch of a ship, or any adventure analogous to a marine adventure, is covered by a
policy in the form of a marine policy, the provisions of this Act, in so far as applicable, shall apply thereto; but, except as provided
by this section, nothing in this Act shall alter or affect any rule of law applicable to any contract of insurance other than a contract
of marine insurance as defined by this Act.
4. Marine adventure and maritime perils defined - (1) Subject to this Act, every lawful marine adventure may be the subject of a contract of marine insurance.
(2) In particular there is a marine adventure where:
(a) any ship, goods, or other movables (such property being hereinafter referred to as "insurable property") are exposed to maritime perils;
(b) the earning or acquisition of any freight, passage money, commission, profit, or other pecuniary benefit, or the security for any advances, loan, or disbursements, is endangered by the exposure of insurable property to maritime perils;
(c) any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property
by reason of maritime perils.
(3) “Maritime perils” means the perils consequent on or incidental to the navigation of the sea, that is to say, perils
of the seas, fire, war perils, pirates, thieves, captures, seizures, restraints, and detainments of princes and peoples, jettisons,
barratry, and any other perils, either of the like kind or designated by the policy.
PART III
INSURABLE INTEREST
5. Avoidance of wagering or gaming contracts - (1) Every contract of marine insurance by way of gaming or wagering is void.
(2) A contract of marine insurance is deemed to be a gaming or wagering contract:
(a) where the assured has not an insurable interest as defined by this Act, and the contract is entered into with no expectation of acquiring such an interest; or
(b) where the policy is made "interest or no interest", or "without further proof of interest than the policy itself", or "without
benefit of salvage to the insurer", or subject to any other like term:
PROVIDED THAT where there is no possibility of salvage a policy may be effected without benefit of salvage to the insurer.
6. Insurable interest defined - (1) Subject to the provisions of this Act, every person has an insurable interest who is interested in a marine adventure.
(2) In particular a person is interested in a marine adventure where this person stands in any legal or equitable relation to the
adventure, or to any insurable property at risk therein, in consequence of which he or she may benefit by the safety or due arrival
of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability
in respect thereof.
7. When interest must attach - (1) The assured must be interested in the subject matter insured at the time of the loss, though he or she need not be interested
when the insurance is effected:
PROVIDED THAT where the subject-matter is insured "lost or not lost", the assured may recover although he or she may not have acquired his or her
interest until after the loss, unless at the time of effecting the contract of insurance the assured was aware of the loss and the
insurer was not.
(2) Where the assured has no interest at the time of the loss, he or she cannot acquire interest by any act or election after he or
she is aware of the loss.
8. Defeasible or contingent interest - (1) A defeasible interest is insurable, as also is a contingent interest.
(2) In particular, where the buyer of goods has insured them the buyer has an insurable interest, despite that the buyer might at
his or her election have rejected the goods, or have treated them as at the seller's risk, by reason of the latter's delay in making
delivery or otherwise.
9. Partial interest - A partial interest of any nature is insurable.
10. Reinsurance - (1) The insurer under a contract of marine insurance has an insurable interest in his or her risk, and may reinsure in respect
of it.
(2) Unless the policy otherwise provides, the original assured has no right or interest in respect of such reinsurance.
11. Bottomry - The lender of money on bottomry or respondentia has an insurable interest in respect of the loan.
12. Master's and seamen's wages - The master or any member of the crew of a ship has an insurable interest in respect of his or her wages.
13. Advance freight - In the case of advance freight, the person advancing the freight has an insurable interest in so far as such freight is not repayable in case of loss.
14. Charges of insurance - The assured has an insurable interest in the charges of any insurance which he or she may effect.
15. Quantum of interest - (1) Where the subject-matter insured is mortgaged, the mortgagor has an insurable interest in the full value thereof, and the mortgagee
has an insurable interest in respect of any sum due or to become due under the mortgage.
(2) A mortgagee, consignee, or other person having an interest in the subject-matter insured may insure on behalf and for the benefit
of other person interested as well as for his or her own benefit.
(3) The owner of insurable property has an insurable interest in respect of the full value thereof, despite that some third person
may have agreed, or be liable, to indemnify him or her in case of loss.
16. Assignment of interest - (1) Where the assured assigns or otherwise parts with his or her interest in the subject matter insured, the assured does not thereby
transfer to the assignee his or her rights under the contract of insurance, unless there is an express or implied agreement with
the assignee to that effect.
(2) The provisions of this section do not affect a transmission of interest by operation of law.
PART IV
INSURABLE VALUE
17. Measure of insurable value - Subject to any express provision or valuation in the policy, the insurable value of the subject matter insured must be ascertained as follows:
(a) in insurance on ship the insurable value is the value at the commencement of the risk, of the ship, including his or her outfit, provisions and stores for the officers and crew, money advanced for seamen's wages, and other disbursements (if any) incurred to make the ship fit for the voyage or adventure contemplated by the policy, plus the charges of insurance upon the whole; and, in the case of a steamship, includes also the machinery, boilers, and coals and engine stores if owned by the assured; and, in the case of a ship engaged in a special trade, the ordinary fittings requisite for that trade;
(b) in insurance on freight, whether paid in advance or otherwise, the insurable value is the gross amount of the freight at the risk of the assured, plus the charges of insurance;
(c) in insurance on goods or merchandise the insurable value is the prime cost of the property insured, plus the expenses of and incidental to shipping and the charges of insurance upon the whole;
(d) in insurance on any other subject-matter the insurable value is the amount at the risk of the assured when the policy attaches, plus the charges of insurance.
PART V
DISCLOSURE AND REPRESENTATIONS
18. Disclosure by assured - (1) Subject to the provisions of this section, the assured must disclose to the insurer, before the contract is concluded, every
material circumstance known to the assured and the assured is deemed to know every circumstance which, in the ordinary course of
business, ought to be known by him or her. If the assured fails to make such disclosure, the insurer may avoid the contract.
(2) Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium or determining whether
he or she will take the risk.
(3) In the absence of inquiry the following circumstances need not be disclosed, namely:
(a) any circumstance which diminishes the risk;
(b) any circumstance known or presumed to be known to the insurer. The insurer is presumed to know matters of common notoriety or knowledge, and matters which an insurer in the ordinary course of his or her business, as such, ought to know;
(c) any circumstance as to which information is waived by the insurer;
(d) any circumstance which it is superfluous to disclose by reason of any express or implied warranty.
(4) Whether any particular circumstance which is not disclosed is material or not is in each case a question of fact.
(5) The term "circumstance" includes any communication made to or information received by the assured.
19. Disclosure by agent effecting insurance - Subject to the provisions of the last preceding section as to circumstances which need not be disclosed, where an insurance is effected for the assured by an agent, the agent must disclose to the insurer:
(a) every material circumstance known to himself or herself; and an agent to insure is deemed to know every circumstance which in the ordinary course of business ought to be known by him or her or to have been communicated to the agent; and
(b) every material circumstance which the assured is bound to disclose; unless it comes to his or her knowledge too late to communicate it to the agent.
20. Representations pending negotiation of contract - (1) Every material representation made by the assured or his or her agent to the insurer during the negotiations for the contract,
and before the contract is concluded, must be true. If it is untrue, the insurer may avoid the contract.
(2) A representation is material which would influence the judgment of a prudent insurer in fixing the premium or determining whether
he or she will take the risk.
(3) A representation may be either a representation as to a matter of fact or as to a matter of expectation or belief.
(4) A representation as to a matter of fact is true if it is substantially correct, that is to say, if the difference between what
is represented and what is actually correct would not be considered material by a prudent insurer.
(5) A representation as to a matter of expectation or belief is true if it is made in good faith.
(6) A representation may be withdrawn or corrected before the contract is concluded.
(7) Whether a particular representation is material or not is in each case a question of fact.
21. When contract is deemed to be concluded - A contract of marine insurance is deemed to be concluded when the proposal of the assured is accepted by the insurer, whether the policy is then issued or not; and for the purpose of showing when the proposal was accepted reference may be made to the slip or covering note, or other customary memorandum of the contract, although it is unstamped.
PART VI
THE POLICY
22. Contract must be embodied in policy - (1) No action shall be brought on a contract of marine insurance unless it is embodied in a marine policy in accordance with this
Act.
(2) The policy may be executed and issued either at the time when the contract is concluded or afterwards.
23. What policy must specify - A marine policy must specify:
(a) the name of the assured, or of some person who effects the insurance on his or her behalf;
(b) the subject matter insured and the risk insured against;
(c) the voyage or period of time, or both, as the case may be, covered by the insurance;
(d) the sum or sums insured;
(e) the name or names of the insurers.
24. Signature of insurer - (1) A marine policy must be signed by or on behalf of the insurer:
PROVIDED THAT in the case of a corporation the corporate seal may be sufficient, but nothing in this section shall be construed as requiring the
subscription of a corporation to be under seal.
(2) Where a policy is subscribed by or on behalf of 2 or more insurers, each subscription, unless the contrary is expressed, constitutes
a distinct contract with the assured.\
25. Designation of subject-matter - (1) The subject-matter insured must be designated in a marine policy with reasonable certainty.
(2) The nature and extent of the interest of the assured in the subject-matter insured need not be specified in the policy.
(3) Where the policy designates the subject-matter insured in general terms, it shall be construed to apply to the interest intended
by the assured to be covered.
(4) In the application of this section regard shall be had to any usage regulating the designation of the subject-matter insured.
26. Failure to execute and stamp policy - (1) If a person, whether as an insurer or as the agent of an insurer, directly or indirectly receives or takes credit in account
for any premium or consideration for any contract of marine insurance, and does not before or within 30 days after receiving or taking
credit for such premium or consideration duly execute and stamp, or procure to be duly executed and stamped, a policy or note of
such insurance, he or she is liable to a fine of 2 penalty units .
(2) If a person, whether as an insurer or as the agent of an insurer, pays any sum of money upon any loss under a contract of marine
insurance which is not expressed in a duly stamped policy, or note or if he or she in any way settles any claim made in respect of
such a contract shall be liable to a fine of 2 penalty units.
(3) This section does not apply to contracts of reinsurance of risks in respect whereof policies have been duly executed and stamped.
(4) This section applies to the agent of an insurer, whether such insurer resides or carries on business in Samoa or elsewhere.
27. Voyage and time policies - (1) Where the contract is to insure the subject matter at and from, or from one place to another or others, the policy is called
a "voyage policy"; and where the contract is to insure the subject-matter for a definite period of time, the policy is called a "time
policy". A contract for both voyage and time may be included in the same policy.
(2) A time policy which is made for any time exceeding 12 months is invalid; but a time policy may (without being liable to any additional
stamp duty) contain an agreement to the effect that, in the event of the ship being at sea or the voyage otherwise not completed
on the expiration of 12 months, the subject matter of the insurance shall be held covered until the arrival of the ship at her destination,
or for a reasonable time thereafter not exceeding 30 days.
28. Valued policy - (1) A policy may be either valued or unvalued.
(2) A valued policy is a policy which specifies the agreed value of the subject matter insured.
(3) Subject to the provisions of this Act, and in the absence of fraud, the value fixed by the policy is, as between the insurer and
assured, conclusive of the insurable value of the subject intended to be insured, whether the loss is total or partial.
(4) Unless the policy otherwise provides, the value fixed by the policy is not conclusive for the purpose of determining whether there
has been a constructive total loss.
29. Unvalued policy - An unvalued policy is a policy, which does not specify the value of the subject matter insured, but subject to the limit of the sum insured, leaves the insurable value to be subsequently ascertained in the manner hereinbefore specified.
30. Floating policy by ship or ships - (1) A floating policy is a policy which describes the insurance in general terms, and leaves the name of the ship or ships and
other particulars to be defined by subsequent declaration.
(2) The subsequent declaration or declarations may be made by endorsement on the policy or in other customary manner.
(3) Unless the policy otherwise provides, the declarations must be made in the order of despatch or shipment. They must, in the case
of goods, comprise all consignments within the terms of the policy, and the value of the goods or other property must be honestly
stated, but an omission or erroneous declaration may be rectified even after loss or arrival, provided the omission or declaration
was made in good faith.
(4) Unless the policy otherwise provides, where a declaration of value is not made until after notice of loss or arrival, the policy
must be treated as an unvalued policy as regards the subject matter of that declaration.
31. Premium to be arranged - (1) Where an insurance is effected at a premium to be arranged, and no arrangement is made, a reasonable premium is payable.
(2) Where an insurance is effected on the terms that an additional premium is to be arranged in a given event, and that event happens
but no arrangement is made, then a reasonable additional premium is payable.
32. Construction of terms in policy - Subject to the provisions of this Act, and unless the context of the policy otherwise requires, the terms and expressions mentioned in the Schedule have, when contained in a policy, the meaning and operation attributed to them in the said Schedule.
PART VII
DOUBLE INSURANCE
33. Double insurance - (1) Where 2 or more policies are effected by or on behalf of the assured on the same adventure and interest or any part thereof,
and the sums insured exceed the indemnity allowed by this Act, the assured is said to be overinsured by double insurance.
(2) Where the assured is overinsured by double insurance:
(a) the assured, unless the policy otherwise provides, may claim payment from the insurers in such order as the assured thinks fit, provided that he or she is not entitled to receive any sum in excess of the indemnity allowed by this Act;
(b) where the policy under which the assured claims is a valued policy, the assured must give credit as against the valuation for any sum received by him or her under any other policy, without regard to the actual value of the subject-matter insured.
(c) where the policy under which the assured claims is an unvalued policy, the assured must give credit, as against the full insurable value, for any sum received by him or her under any other policy.
(d) where the assured receives any sum in excess of the indemnity allowed by this Act, he or she is deemed to hold such sum in trust for the insurers, according to their right of contribution among themselves.
PART VIII
WARRANTIES
34. Nature of warranty - (1) A warranty, in the following sections relating to warranties, means a promissory warranty, that is to say, a warranty by which
the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby
he or she affirms or negatives the existence of a particular state of facts.
(2) A warranty may be express or implied.
(3) A warranty as above defined is a condition which must be exactly complied with, whether material to the risk or not. If it is
not so complied with, then, subject to any express provision in the policy, the insurer is discharged from liability as from the
date of the breach of warranty, but without prejudice to any liability incurred by him or her before that date.
35. When breach of warranty excused - (1) Non compliance with a warranty is excused when, by reason of a change of circumstances, the warranty ceases to be applicable
to the circumstances of the contract, or when compliance with the warranty is rendered unlawful by any subsequent law.
(2) Where a warranty is broken, the assured cannot avail himself or herself of the defence that the breach has been remedied, and
the warranty complied with, before loss.
(3) A breach of warranty may be waived by the insurer.
36. Express warranties - (1) An express warranty may be in any form of words from which the intention to warrant is to be inferred.
(2) An express warranty must be included in or written upon the policy, or must be contained in some document incorporated by reference
into the policy.
(3) An express warranty does not exclude an implied warranty, unless it is inconsistent therewith.
37. Warranty of neutrality - (1) Where insurable property, whether ship or goods, is expressly warranted neutral, there is an implied condition that the property
shall have a neutral character at the commencement of the risk, and that, so far as the assured can control the matter, its neutral
character shall be preserved during the risk.
(2) Where a ship is expressly warranted neutral, there is also an implied condition that, so far as the assured can control the matter,
the ship shall be properly documented, that is to say, the ship shall carry the necessary papers to establish neutrality, and that
the ship’s papers shall not be falsified or suppressed, and that simulated papers shall not be used. If any loss occurs through
breach of this condition, the insurer may avoid the contract.
38. No implied warranty of nationality - There is no implied warranty as to the nationality of a ship, or that the ship’s nationality shall not be changed during the risk.
39. Warranty of good safety - Where the subject-matter insured is warranted “well” or “in good safety” on a particular day, it is sufficient if it is safe at any time during that day.
40. Warranty of seaworthiness of ship - (1) In a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose
of the particular adventure insured.
(2) Where the policy attaches while the ship is in port, there is also an implied warranty that the ship shall, at the commencement
of the risk, be reasonably fit to encounter the ordinary perils of the port.
(3) Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of
or under preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect
of such preparation or equipment for the purposes of that stage.
(4) A ship is deemed to be seaworthy when the ship is reasonably fit in all respects to encounter the ordinary perils of the seas
of the adventure insured.
(5) In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure; but where, with
the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable
to unseaworthiness.
41. No implied warranty that goods are seaworthy - (1) In a policy on goods or other movables there is no implied warranty that the goods or movables are seaworthy.
(2) In a voyage policy on goods or other movables there is an implied warranty that at the commencement of the voyage the ship is
not only seaworthy as a ship, but also that the ship is reasonably fit to carry the goods or other movables to the destination contemplated
by the policy.
42. Warranty of legality - There is an implied warranty that the adventure insured is a lawful one, and that, so far as the assured can control the matter, the adventure shall be carried out in a lawful manner.
PART IX
THE VOYAGE
43. Implied condition as to commencement of risk - (1) Where the subject matter is insured by a voyage policy "at and from" or “from” a particular place, it is not necessary
that the ship should be at that place when the contract is concluded, but there is an implied condition that the adventure shall
be commenced within a reasonable time, and that if the adventure is not so commenced the insurer may avoid the contract.
(2) The implied condition may be negatived by showing that the delay was caused by circumstances known to the insurer before the contract
was concluded, or that the insurer waived the condition.
44. Alteration of port of departure - Where the place of departure is specified by the policy, and ship instead of sailing from that place sails from any other place, the risk does not attach.
45. Sailing for different destination - Where the destination is specified in the policy, and the ship instead of sailing for that destination sails for any other destination, the risk does not attach.
46. Change of voyage - (1) Where, after the commencement of the risk, the destination of the ship is voluntarily changed from the destination contemplated
by the policy, there is said to be a change of voyage.
(2) Unless the policy otherwise provides, where there is a change of voyage the insurer is discharged from liability as from the time
of change, that is to say, as from the time when the determination to change it is manifested; and it is immaterial that the ship
may not in fact have left the course of voyage contemplated by the policy when the loss occurs.
47. Deviation - (1) Where a ship without lawful excuse deviates from the voyage contemplated by the policy, the insurer is discharged from liability
as from the time of deviation, and it is immaterial that the ship may have regained her route before any loss occurs.
(2) There is a deviation from the voyage contemplated by the policy:
(a) where the course of the voyage is specifically designated by the policy, and that course is departed from; or
(b) where the course of the voyage is not specifically designated by the policy, but the usual and customary course is departed from.
(3) The intention to deviate is immaterial; there must be a deviation in fact to discharge the insurer from his or her liability under
the contract.
48. Several ports of discharge - (1) Where several ports of discharge are specified by the policy, the ship may proceed to all or any of them, but in the absence
of any usage or sufficient cause to the contrary the ship must proceed to them, or such of them as the ship goes to, in the order
designated by the policy. If the ship does not, there is a deviation.
(2) Where the policy is to "ports of discharge" within a given area, which are not named, the ship must, in the absence of any usage
or sufficient cause to the contrary, proceed to them, or such of them as the ship goes to, in their geographical order. If the
ship does not, there is a deviation.
49. Delay in voyage - In the case of a voyage policy the adventure insured must be prosecuted throughout its course with reasonable despatch, and if without lawful excuse it is not so prosecuted, the insurer is discharged from liability as from the time when the delay became unreasonable.
50. Excuses for deviation or delay - (1) Deviation or delay in prosecuting the voyage contemplated by the policy is excused:
(a) where authorised by any special term in the policy; or
(b) where caused by circumstances beyond the control of the master and his or her employer; or
(c) where reasonably necessary in order to comply with an express or implied warranty; or
(d) where reasonably necessary for the safety of the ship or subject matter insured; or
(e) for the purpose of saving human life, or aiding a ship in distress where human life may be in danger; or
(f) where reasonably necessary for the purpose of obtaining medical or surgical aid for a person on board the ship; or
(g) where caused by the barratrous conduct of the master or crew, if barratry is one of the perils insured against.
(2) When the cause excusing the deviation or delay ceases to operate, the ship must resume course and prosecute the ship’s voyage
with reasonable despatch.
PART X
ASSIGNMENT OF POLICY
51. When and how policy is assignable - (1) A marine policy is assignable unless it contains terms expressly prohibiting assignment. It may be assigned either before
or after loss.
(2) Where a marine policy has been assigned so as to pass the beneficial interest in the policy, the assignee of the policy is entitled
to sue thereon in his or her own name; and the defendant is entitled to make any defence arising out of the contract which he or
she would have been entitled to make if the action had been brought in the name of the person by or on behalf of whom the policy
was effected.
(3) A marine policy may be assigned by endorsement thereon or in other customary manner.
52. Assured who has no interest cannot assign - Where the assured has parted with or lost his or her interest in the subject matter insured, and has not, before or at the time
of so doing, expressly or impliedly agreed to assign the policy, any subsequent assignment of the policy is inoperative:
PROVIDED THAT nothing in this section affects the assignment of a policy after loss.
PART XI
THE PREMIUM
53. Policy affected through broker - (1) Unless otherwise agreed, where a marine policy is effected on behalf of the assured by a broker, the broker is directly responsible
to the insurer for the premium, and the insurer is directly responsible to the assured for the amount which may be payable in respect
of losses or in respect of returnable premium.
(2) Unless otherwise agreed, the broker has, as against the assured, a lien upon the policy for the amount of the premium and his
or her charges in respect of effecting the policy; and, where the broker has dealt with the person who employs the broker as a principal,
he or she has also a lien on the policy in respect of any balance on any insurance account which may be due to him or her from such
person, unless when the debt was incurred he or she had reason to believe that such person was only an agent.
54. Effect of receipt on policy - Where a marine policy effected on behalf of the assured by a broker acknowledges the receipt of the premium, such acknowledgment is, in the absence of fraud, conclusive as between the insurer and the assured, but not as between the insurer and the broker.
PART XII
LOSS AND ABANDONMENT
55. Included and excluded losses - (1) Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proximately
caused by a peril insured against; but, subject as aforesaid, the insurer is not liable for any loss not proximately caused by a
peril insured against.
(2) In particular:
(a) the insurer is not liable for any loss attributable to the wilful misconduct of the assured; but, unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against; even though the loss would not have happened but for the misconduct or negligence of the master or crew;
(b) unless the policy otherwise provides, the insurer on ship or goods is not liable for any loss proximately caused by delay, although the delay is caused by a peril insured against;
(c) unless the policy otherwise provides, the insurer is not liable for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject matter insured, or for any loss proximately caused by rats or vermin, or for any injury to machinery not proximately caused by maritime perils.
56. Partial and total loss - (1) A loss may be either total or partial. Any loss other than a total loss, as hereinafter defined, is a partial loss.
(2) A total loss may be either an actual total loss or a constructive total loss.
(3) Unless a different intention appears from the terms of the policy, an insurance against total loss includes a constructive as
well as an actual total loss.
(4) Where the assured brings an action for a total loss, and the evidence proves only a partial loss, he or she may, unless the policy
otherwise provides, recover for a partial loss.
(5) Where goods reach their destination in specie, but by reason of obliteration of marks or otherwise they are incapable of identification,
the loss (if any) is partial and not total.
57. Actual total loss - (1) Where the subject matter insured is destroyed, or so damaged as to cease to be a thing of the kind insured, or where the assured
is irretrievably deprived thereof, there is an actual total loss.
(2) In the case of an actual total loss no notice of abandonment need be given.
58. Missing ship - Where the ship concerned in the adventure is missing, and after the lapse of a reasonable time no news of the ship has been received, an actual total loss may be presumed.
59. Effect of transhipment and landing- Where, by a peril insured against, the voyage is interrupted at an intermediate port or place under such circumstances as, apart from any special stipulation in the contract of affreightment, to justify the master in landing and reshipping the goods or other movables, or in transhipping them, and sending them on to their destination, the liability of the insurer continues, despite the landing or transhipment.
60. Constructive total loss defined - (1) Subject to any express provision in the policy, there is a constructive total loss where the subject matter insured is reasonably
abandoned on account of its actual total loss appearing to be unavoidable, or because it could not be preserved from actual total
loss without an expenditure which would exceed its value when the expenditure had been incurred.
(2) In particular there is a constructive total loss:
(a) where the assured is deprived of the possession of his or her ship or goods by a peril insured against; and
(i) it is unlikely that he or she can recover the ship or goods, as the case may be; or
(ii) the cost of recovering the ship or goods, as the case may be, would exceed their value when recovered; or
(b) in the case of damage to a ship, where the ship is so damaged by a peril insured against that the cost of repairing the damage would exceed the value of the ship when repaired; or
(c) in the case of damage to goods, where the cost of repairing the damage and forwarding the goods to their destination would exceed
their value on arrival.
(3) In estimating the cost of repairs, no deduction is to be made in respect of general average contributions to those repairs payable
by other interests, but account is to be taken of the expense of future salvage operations and of any future general average contributions
to which the ship would be liable if repaired.
61. Effect of constructive total loss - Where there is a constructive total loss, the assured may either treat the loss as a partial loss or abandon the subject matter insured to the insurer and treat the loss as if it were an actual total loss.
62. Notice of abandonment - (1) Subject to the provisions of this section, where the assured elects to abandon the subject matter insured, he or she must give
notice of abandonment. If the assured fails to do so, the loss can be treated only as a partial loss.
(2) Notice of abandonment may be given in writing, or by word of mouth, or partly in writing and partly by word of mouth, and may
be given in any terms which indicate the intention of the assured to abandon his or her insured interest in the subject matter insured
unconditionally to the insurer.
(3) Notice of abandonment must be given with reasonable diligence after the receipt of reliable information of the loss, but where
the information is of a doubtful character the assured is entitled to a reasonable time to make inquiry.
(4) Where notice of abandonment is properly given, the rights of the assured are not prejudiced by the fact that the insurer refuses
to accept the abandonment.
(5) The acceptance of an abandonment may be either express or implied from the conduct of the insurer. The mere silence of the insurer
after notice is not an acceptance.
(6) Where notice of abandonment is accepted, the abandonment is irrevocable. The acceptance of the notice conclusively admits liability
for the loss and the sufficiency of the notice.
(7) Notice of abandonment is unnecessary where, at the time when the assured receives information of the loss, there would be no possibility
of benefit to the insurer if notice were given to him or her.
(8) Notice of abandonment may be waived by the insurer.
(9) Where an insurer has reinsured his or her risk, no notice of abandonment need be given by him or her.
63. Effect of abandonment - (1) Where there is a valid abandonment, the insurer is entitled to take over the interest of the assured in whatever may remain
of the subject matter insured, and all proprietary rights incidental thereto.
(2) Upon the abandonment of a ship the insurer thereof is entitled to any freight which is in course of being earned, and which is
earned by the ship subsequent to the casualty causing the loss, less the expenses of earning it incurred after the casualty; and
where the ship is carrying the owner's goods, the insurer is entitled to a reasonable remuneration for the carriage of them subsequently
to the casualty causing the loss.
PART XIII
PARTIAL LOSSES (INCLUDING SALVAGE AND
GENERAL AVERAGE AND PARTICULAR CHARGES)
64. Particular average loss - (1) A particular average loss is a partial loss of the subject matter insured, which is caused by a peril insured against, and
which is not a general average loss.
(2) Expenses incurred by or on behalf of the assured for the safety or preservation of the subject matter insured, other than general
average and salvage charges, are called particular charges. Particular charges are not included in particular average.
65. Salvage charges - (1) Subject to any express provision in the policy, salvage charges incurred in preventing a loss by perils insured against may
be recovered as a loss by those perils.
(2) “Salvage charges” means the charges recoverable under maritime law by a salvor independently of contract, and does
not include the expenses of services in the nature of salvage rendered by the assured or his or her agents, or any person employed
for hire by them, for the purpose of averting a peril insured against. Such expenses, where properly incurred, may be recovered
as particular charges or as a general average loss, according to the circumstances under which they were incurred.
66. General average loss - (1) A general average loss is a loss caused by or directly consequential on a general average act. It includes a general average
expenditure as well as a general average sacrifice.
(2) There is a general average act where any extraordinary sacrifice or expenditure is voluntarily and reasonably made or incurred
in time of peril for the purpose of preserving the property imperilled in the common adventure.
(3) Where there is a general average loss, the party on whom it falls is entitled, subject to the conditions imposed by maritime law,
to a rateable contribution from the other parties interested, and such contribution is called a general average contribution.
(4) Subject to any express provision in the policy, where the assured has incurred a general average expenditure he or she may recover
from the insurer in respect of the proportion of the loss which falls upon him or her; and, in the case of a general average sacrifice,
he or she may recover from the insurer in respect of the whole loss without having enforced his or her right of contribution from
the other parties liable to contribute.
(5) Subject to any express provision in the policy, where the assured has paid or is liable to pay a general average contribution
in respect of the subject insured he or she may recover therefor from the insurer.
(6) In the absence of express stipulation, the insurer is not liable for any general average loss or contribution where the loss was
not incurred for the purpose of avoiding or in connection with the avoidance of a peril insured against.
(7) Where ship, freight, and cargo, or any 2 of those interests, are owned by the same assured, the liability of the insurer in respect
of general average losses or contributions is to be determined as if those subjects were owned by different persons.
PART XIV
MEASURE OF INDEMNITY
67. Extent of liability of insurer for loss - (1) The sum which the assured can recover in respect of a loss on a policy by which he or she is insured, in the case of an unvalued
policy to the full extent of the insurable value, or in the case of a valued policy to the full extent of the value fixed by the
policy, is called the measure of indemnity.
(2) Where there is a loss recoverable under the policy, the insurer, or each insurer if there are more than one, is liable for such
proportion of the measure of indemnity as the amount of his or her subscription bears to the value fixed by the policy in the case
of a valued policy, or to the insurable value in the case of an unvalued policy.
68. Total loss - Subject to the provisions of this Act and to any express provision in the policy, where there is a total loss of the subject-matter insured:
(a) if the policy is a valued policy, the measure of indemnity is the sum fixed by the policy;
(b) if the policy is an unvalued policy, the measure of indemnity is the insurable value of the subject-matter insured.
69. Partial loss of ship - Where a ship is damaged, but is not totally lost, the measure of indemnity, subject to any express provision in the policy, is
as follows:
(a) where the ship has been repaired, the assured is entitled to the reasonable cost of the repairs, less the customary deductions, but not exceeding the sum insured in respect of any one casualty;
(b) where the ship has been only partially repaired, the assured is entitled to the reasonable cost of such repairs, computed as above, and also to be indemnified for the reasonable depreciation (if any) arising from the unrepaired damage, provided that the aggregate amount shall not exceed the cost of repairing the whole damage, computed as above;
(c) where the ship has not been repaired, and has not been sold in the ship’s damaged state during the risk, the assured is entitled to be indemnified for the reasonable depreciation arising from the unrepaired damage, but not exceeding the reasonable cost of repairing such damage, computed as above.
70. Partial loss of freight - Subject to any express provision in the policy, where there is a partial loss of freight the measure of indemnity is such proportion of the sum fixed by the policy in the case of a valued policy, or of the insurable value in the case of an unvalued policy, as the proportion of freight lost by the assured bears to the whole freight at the risk of the assured under the policy.
71. Partial loss of goods, merchandise, or other movables - Where there is a partial loss of goods, merchandise, or other movables, the measure of indemnity, subject to any express provision in the policy, is as follows:
(a) where part of the goods, merchandise, or other movables insured by a valued policy is totally lost, the measure of indemnity is such proportion of the sum fixed by the policy as the insurable value of the part lost bears to the insurable value of the whole, ascertained as in the case of an unvalued policy;
(b) where part of the goods, merchandise, or other movables insured by an unvalued policy is totally lost, the measure of indemnity is the insurable value of the part lost, ascertained as in case of total loss;
(c) where the whole or any part of the goods or merchandise insured has been delivered damaged at its destination, the measure of indemnity is such proportion of the sum fixed by the policy in the case of a valued policy, or of the insurable value in the case of an unvalued policy, as the difference between the gross sound and damaged values at the place of arrival bears to the gross sound value;
(d) “Gross value” means the wholesale price or, if there is no such price, the estimated value, with in either case freight, landing charges, and duty paid beforehand,-
PROVIDED THAT, in the case of goods or merchandise customarily sold in bond, the bonded price is deemed to be the gross value.
72. Apportionment of valuation - (1) Where different species of property are insured under a single valuation, the valuation must be apportioned over the different
species in proportion to their respective insurable values, as in the case of an unvalued policy.
(2) The insured value of any part of a species is such proportion of the total insured value of the same as the insurable value of
the part bears to the insurable value of the whole, ascertained in both cases as provided by this Act.
(3) Where a valuation has to be apportioned, and particulars of the prime cost of each separate species, quality, or description of
goods cannot be ascertained, the division of the valuation may be made over the net arrived sound values of the different species,
qualities, or descriptions of goods.
73. General average contributions and salvage charges - (1) Subject to any express provision in the policy, where the assured has paid or is liable for any general average contribution
the measure of indemnity is the full amount of such contribution if the subject-matter liable to contribution is insured for its
full contributory value, but if such subject-matter is not insured for its full contributory value, or if only part of it is insured,
the indemnity payable by the insurer must be reduced in proportion to the under-insurance, and where there has been a particular
average loss which constitutes a deduction from the contributory value, and for which the insurer is liable, that amount must be
deducted from the insured value in order to ascertain what the insurer is liable to contribute.
(2) Where the insurer is liable for salvage charges, the extent of his or her liability must be determined on the like principle.
74. Liabilities to third parties - Where the assured has effected an insurance in express terms against any liability to a third party, the measure of indemnity, subject to any express provision in the policy, is the amount paid or payable by him or her to such third party in respect of such liability.
75. General provision as to measure of indemnity - (1) Where there has been a loss in respect of any subject-matter not expressly provided for in the foregoing provisions of this
Act, the measure of indemnity shall be ascertained, as nearly as may be, in accordance with those provisions, in so far as applicable
to the particular case.
(2) Nothing in the provisions of this Act relating to the measure of indemnity shall affect the rules relating to double insurance,
or prohibit the insurer from disproving interest wholly or in part, or from showing that at the time of the loss the whole or any
part of the subject-matter insured was not at risk under the policy.
76. Particular average warranties - (1) Where the subject-matter insured is warranted free from particular average, the assured cannot recover for a loss of part,
other than a loss incurred by a general average sacrifice, unless the contract contained in the policy is apportionable; but if the
contract is apportionable, the assured may recover for a total loss of any apportionable part.
(2) Where the subject-matter insured is warranted free from particular average, either wholly or under a certain percentage, the insurer
is nevertheless liable for salvage charges, and for particular charges and other expenses properly incurred pursuant to the provisions
of the suing and labouring clause in order to avert a loss insured against.
(3) Unless the policy otherwise provides, where the subject-matter insured is warranted free from particular average under a specified
percentage, a general average loss cannot be added to a particular average loss to make up the specified percentage.
(4) For the purpose of ascertaining whether the specified percentage has been reached, regard shall be had only to the actual loss
suffered by the subject-matter insured. Particular charges and the expenses of and incidental to ascertaining and proving the loss
must be excluded.
77. Successive losses - (1) Unless the policy otherwise provides, and subject to the provisions of this Act, the insurer is liable for successive losses,
even though the total amount of such losses may exceed the sum insured.
(2) Where under the same policy a partial loss which has not been repaired or otherwise made good is followed by a total loss, the
assured can only recover in respect of the total loss.
(3) Nothing in this section shall affect the liability of the insurer under the suing and labouring clause.
78. Suing and labouring clause - (1) Where the policy contains a suing and labouring clause, the engagement thereby entered into is deemed to be supplementary to
the contract of insurance, and the assured may recover from the insurer any expenses properly incurred pursuant to the clause, despite
that the insurer may have paid for a total loss, or that the subject-matter may have been warranted free from particular average,
either wholly or under a certain percentage.
(2) General average losses and contributions and salvage charges, as defined by this Act, are not recoverable under the suing and
labouring clause.
(3) Expenses incurred for the purpose of averting or diminishing any loss not covered by the policy are not recoverable under the
suing and labouring clause.
(4) It is the duty of the assured and his or her agents in all cases to take such measures as may be reasonable for the purpose of
averting or minimising a loss.
PART XV
RIGHTS OF INSURER ON PAYMENT
79. Right of subrogation - (1) Where the insurer pays for a total loss either of the whole or, in the case of goods, of any apportionable part of the subject-matter
insured, the insurer thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subject-matter
so paid for, and the insurer is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter
as from the time of the casualty causing the loss.
(2) Subject to the foregoing provisions, where the insurer pays for a partial loss the insurer acquires no title to the subject-matter
insured, or such part of it as may remain, but he or she is thereupon subrogated to all rights and remedies of the assured in and
in respect of the subject-matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified,
according to this Act, by such payment for the loss.
80. Right of contribution - (1) Where the assured is overinsured by double insurance, each insurer is bound, as between himself or herself and the other insurers,
to contribute rateably to the loss in proportion to the amount for which he or she is liable under his or her contract.
(2) If any insurer pays more than his or her proportion of the loss, the insurer is entitled to maintain an action for contribution
against the other insurers, and is entitled to the like remedies as a surety who has paid more than his or her proportion of the
debt.
81. Effect of under-insurance - Where the assured is insured for an amount less than the insurable value, or, in the case of a valued policy, for an amount less than the policy valuation, he or she is deemed to be his or her own insurer in respect of the uninsured balance.
PART XVI
RETURN OF PREMIUM
82. Enforcement of return - Where the premium or a proportionate part thereof is by this Act declared to be returnable:
(a) if already paid, it may be recovered by the assured from the insurer; and
(b) if unpaid, it may be retained by the assured or his or her agent.
83. Return by agreement - Where the policy contains a stipulation for the return of the premium or a proportionate part thereof on the happening of a certain event, and that event happens, the premium or, as the case may be, the proportionate part thereof is thereupon returnable to the assured.
84. Return for failure of consideration - (1) Where the consideration for the payment of the premium totally fails, and there has been no fraud or illegality on the part
of the assured or his or her agents, the premium is thereupon returnable to the assured.
(2) Where the consideration for the payment of the premium is apportionable, and there is a total failure of any apportionable part
of the consideration, a proportionate part of the premium is under the like conditions thereupon returnable to the assured.
(3) In particular:
(a) where the policy is void, or is avoided by the insurer as from the commencement of the risk, the premium is returnable, provided that there has been no fraud or illegality on the part of the assured; but if the risk is not apportionable, and has once attached, the premium is not returnable;
(b) where the subject-matter insured or part thereof has never been imperilled, the premium or, as the case may be, a proportionate part thereof is returnable:
PROVIDED THAT where the subject-matter has been insured "lost or not lost", and has arrived in safety at the time when the contract is concluded, the premium is not returnable unless at such time the insurer knew of the safe arrival.
(c) where the assured has no insurable interest throughout the currency of the risk, the premium is returnable; provided that this rule does not apply to a policy effected by way of gaming or wagering;
(d) where the assured has a defeasible interest which is terminated during the currency of the risk, the premium is not returnable;
(e) where the assured has over-insured under an unvalued policy, a proportionate part of the premium is returnable;
(f) subject to the foregoing provisions, where the assured has over-insured by double insurance, a proportionate part of the several premiums is returnable:
PROVIDED THAT if the policies are effected at different times, and any earlier policy has at any time borne the entire risk, or if a claim has been paid on the policy in respect of the full sum insured thereby, no premium is returnable in respect of that policy; and when the double insurance is effected knowingly by the assured, no premium is returnable.
PART XVII
MUTUAL INSURANCE
85. Modification of Act in case of mutual insurance - (1) Where 2 or more persons mutually agree to insure each other against marine losses there is said to be a mutual insurance.
(2) The provisions of this Act relating to the premium do not apply to mutual insurance, but a guarantee, or such other arrangement
as may be agreed upon, may be substituted for the premium.
(3) The provisions of this Act, in so far as they may be modified by the agreement of the parties, may in the case of mutual insurance
be modified by the terms of the policies issued by the association, or by the rules and regulations of the association.
(4) Subject to the exceptions mentioned in this section, the provisions of this Act apply to a mutual insurance.
PART XVIII
SUPPLEMENTAL
86. Ratification by assured - Where a contract of marine insurance is in good faith effected by one person on behalf of another, the person on whose behalf it is effected may ratify the contract even after he or she is aware of the loss.
87. Implied obligations varied by agreement or usage - (1) Where any right, duty, or liability would arise under a contract of marine insurance by implication of law, it may be negatived
or varied by express agreement, or by usage, if the usage be such as to bind both parties to the contract.
(2) The provisions of this section extend to any right, duty, or liability declared by this Act which may be lawfully modified by
agreement.
88. Reasonable time, etc., a question of fact - Where by this Act any reference is made to a reasonable premium, or reasonable diligence, the question what is reasonable is a question of fact.
89. Application of rules of common law - The rules of the common law including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to contracts of marine insurance.
90. Slip as evidence - Where there is a duly stamped policy, reference may be made in any legal proceeding to the slip or covering note, although it is not stamped.
91. Repeal and saving - (1) The Marine Insurance Act 1908 (NZ) is repealed as part of the law of Samoa.
(2) All matters and proceedings commenced under that Act, and pending or in progress on the coming into operation of this Act, may
be continued, completed, and enforced under this Act.
SCHEDULE
(Section 32)
RULES FOR THE CONSTRUCTION OF POLICIES
The following are the rules referred to by this Act for the construction of a policy where the context otherwise require:
(b) If the ship is not at that place when the contract is concluded the risk attaches as soon as the ship arrives there in good safety; and, unless the policy otherwise provides, it is immaterial that the ship is covered by another policy for a specified time after arrival.
(c) Where chartered freight is insured “at and from” a particular place, and the ship is at that place in good safety when the contract is concluded, the risk attaches immediately. If the ship is not there when the contract is concluded, the risk attaches as soon as the ship arrives there in good safety;
(d) Where freight other than chartered freight is payable without special conditions, and is insured “at and from” a particular place, the risk attaches pro rata as the goods or merchandise are shipped; provided that if there is cargo in readiness which belong to the shipowner, or which some other person has contracted with him or her to ship, the risk attaches as soon as the ship is ready to receive such cargo.
REVISION NOTES 2008-2011
This Act has been revised under section 5 of the Revision and Publication of Laws Act 2008.
The following general revisions have been made:
(a) Insertion of the commencement date
(b) Other minor editing has been done in accordance with the lawful powers of the Attorney General.
(i) “any” changed to “a” where appropriate
(ii) Present tense drafting style:
- “shall be” changed to “is/are”
- “hereby” removed
(iii) Removal/replacement of obsolete, archaic and Latin terms with plain language: “notwithstanding” changed to “despite”
(iv) Removal of superfluous terms : “the provisions of”
(v) “etc.” deleted and where appropriate, replaced with complete sentences
(vi) Empowering provision for Schedule inserted
(vii) Part numbers inserted
There were no amendments made to this Act since the publication of the Consolidated and Revised Statutes of Samoa 2007.
This Act has been consolidated and revised in 2008, 2009, 2010 and 2011 by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is the official version of this Act as at 31 December 2011. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.
Aumua Ming Leung Wai
Attorney General of Samoa
Revised and consolidated in 2008 by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)
Revised in 2009, 2010 and 2011 by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).
The Marine Insurance Act 1975 is
administered in the Ministry of Works, Transport and Infrastructure.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/ws/legis/consol_act_2011/mia1975170