Waiver of remedies

In Argo Systems FZE v Liberty Insurance (Pte) and Anr [2011] EWHC 301 (Comm) HHJ Mackie QC addressed difficult and in part unresolved questions involving waiver of remedies for breach of the duty of utmost good faith, and waiver of breach of warranty. The judgment is important also in that it shows that the wording of a reservation of rights may itself preclude reliance on known defences.

Argo Systems: the facts

The claimant assured was the owner of the vessel Copa Casino, a floating casino which had been purchased for scrap and which was to be towed from the US Gulf to India. The contract for the towage (the Towcon) provided that the tugowner would indemnify the assured in respect of any liability for death of or injury to crew and that the tugowner would bear the risk of loss of the tug, but that the tugowner would not be liable for any loss or damage sustained by the tow. This was standard form wording.