Lloyd's Maritime and Commercial Law Quarterly
Non-disclosure and misrepresentation in contracts of marine insurance: a comparative overview and some proposals for unification
Sarah C.Derrington *
In June of 1998, the Comité Maritime International joined with the Norwegian Maritime Law Association and the Scandinavian Institute of Maritime Law in organizing a symposium in Oslo to discuss marine insurance. This was followed in December 1999 by a conference in Antwerp at which over 260 delegates discussed harmonization of marine insurance laws and an International Working Group has been formed to study the possibility of unifying rules or conditions for marine insurance. Harmonization of marine insurance law is now back on the international agenda. The Attorney-General for the Commonwealth of Australia has recently referred reform of Australian marine insurance law to the Australian Law Reform Commission. This article compares the law relating to non-disclosure and misrepresentation in contracts of marine insurance in the French and Norwegian legal systems with the law as it stands in Australia and the United Kingdom and formulates some proposals for unified rules relating to those issues.
A. NON-DISCLOSURE AND MISREPRESENTATION IN AUSTRALIA AND THE UNITED KINGDOM—A DIVERGENCE
The law which governs the obligations relating to non-disclosure and misrepresentation in marine insurance law in Australia and the United Kingdom is found in the respective Marine Insurance Acts1
of those jurisdictions.
Despite nearly a century’s having elapsed since the enactment of the Marine Insurance Act 1906 (UK), the House of Lords has only recently given an extensive opinion on the interpretation of the obligations relating to non-disclosure and misrepresentation contained therein. As a result of the decision in Pan Atlantic Insurance Ltd
v. Pine Top Ltd
2
there is now a considerable difference between the interpretation by the House of Lords3
of the obligations contained in the Marine Insurance Act 1906 and the interpretations which have been given to the equivalent Australian provisions by various Australian
* Barrister, Senior Lecturer in Law, University of Queensland.
1. Marine Insurance Act 1906 (UK) and Marine Insurance Act 1909 (Cth).
2. Pan Atlantic Insurance Ltd
v. Pine Top Ltd
[1995] 1 A.C. 501.
3. It would appear that the English Court of Appeal is still not entirely convinced by the reasoning of the House of Lords in Pan Atlantic
v. Pine Top.
In St Paul Fire & Marine Insurance Co. (UK) Ltd
v. McConnell Dowell Constructors Ltd
[1995] 2 Lloyd’s Rep. 116, 123, the Court of Appeal held that there is no practical need to define “material” in terms of decisive influence or by reference to inducement, thereby rendering a large portion of the speeches in the House of Lords otiose.
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