Chương XVIII Bộ luật hàng hải Việt Nam 2015: Hợp đồng bảo hiểm hàng hải

Chapter XVIII

MARINE INSURANCE CONTRACT

Section 1. GENERAL PROVISIONS

Article 303. Marine insurance contract

1. A contract of marine insurance refers to a contract of insurance against marine risks whereby the assured is bound to pay agreed premiums and the insurer undertakes to indemnify the assured against marine losses that fall under the insurance coverage in manner and to the extent thereby agreed.

Maritime perils refer to the perils consequent on, or incidental to, the navigation of the sea, including perils of the seas, fire, explosion, war perils, pirates, thieves, seizures, captures, restraints, detainments, jettisons, procurements, requisitions, acquisitions by the Government, illegal acts and any other perils, either of the like kind or which may be designated by the insurance contract.

2. A marine insurance contract may be extended in accordance with specific conditions or trade practices so as to protect the assured against losses on inland waters or on any road, rail and aviation risk which may be incidental to any sea voyage

3. The marine insurance contract must be effected in writing.

Article 304. Subject of a marine insurance contract

1. The subject of a marine insurance contract refers to any pecuniary benefit relating to marine operations.

2. The subject of a marine insurance contract includes:

a) Sea-going ships, ships in course of building, goods or any property are exposed to maritime perils;

b) Freight for carriage of goods, charges for hiring or hiring and purchase of a ship, estimated interest on goods, commissions, loans or security for any advance, expenses endangered by the exposure of sea-going ships, ships in course of building, goods or any other property to maritime perils;

c) Any liability may be incurred by reason of maritime perils.

Article 305. Determination of insurable interest

1. The person who has insurable interest refers to the person who is interested in the subject of insurance in a marine adventure.

2. A person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he 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.

3. The assured must be interested in the subject-matter insured at the time of the loss though he need not be interested therein when the insurance is effected. Provided that where the subject-matter is insured “lost or not lost,” the assured may recover although he may not have acquired his 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.

Where the assured has no interest in the subject of insurance at the time of the loss, he cannot acquire interest by any act or election after he is aware of the loss.

4. where the buyer of goods has insured them, he has an insurable interest, notwithstanding that he might, at his 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.

5. A partial interest of a ship, ship in course of building, goods or any other property is insurable.

Article 306. Re-insurance

1. The insurer may re-insure the subject matter which he has agreed to insure for other person.

2. The reinsurance contract is independent of the original insurance contract whereby the original insurer remains responsible to the assured.

Article 307. Insurance policy or certificate

1. Subject to the request of the assured, the insurer is obliged to issue the insurance policy or certificate to the assured. The insurance policy or certificate is the evidence that a marine insurance contract is effected.

2. A policy may be issued in one of the following forms:

a) A voyage policy refers to an insurance policy issued to the subject matter from one place to another or other;

b) A time policy refers to an insurance policy issued to the subject matter for a definite period of time;

c) A valued policy refers to a policy under which the insurer agrees in advance to the value of the subject-matter specified in the insurance policy that matches the insured value, and which prevails in payment of indemnity for total or partial losses.

Determination of estimated total loss must be subject to the value of the value specified in an insurance contract and provisions laid down in paragraph 1 Article 333 hereof, unless otherwise agreed upon in the insurance policy;

d) An unvalued policy refers to a policy which does not specify the value of the subject-matter insured, but specify the sum insured therein.

3. A policy must specify the following basic elements:

a) The name of the assured, or of some person who effects the insurance on his behalf;

b) The subject matter insured;

c) The insurance condition;

d) The period covered;

dd) The sum insured;

e) Place, day and month and time of issuance of the policy;

g) Signature of the insurer.

4. Form and content of a policy shall be applied to an insurance certificate.

Article 308. Obligations of the assured

1. The assured is bound to provide the insurer with all of information which he has known or must be known relating to effecting of the insurance contract which may have effect on determination of likelihood of any loss or decision of the insurer on his consent to an insurance contract and insurance conditions, exclusive of information that everybody knows or the insurer has known or must know.

2. Obligations of the assured referred to in paragraph 1 of this Article shall be applied to a person acting on his behalf.

Article 309. Automatic termination of a marine insurance contract

A marine insurance contract shall be automatically terminated in the event that, on the date of effecting thereof, any insurable loss has occurred or is not likely to occur in reality; in this case, the insurer is not liable for indemnity but remains entitled to collect insurance premiums specified in the insurance contract, except to the extent that the insurer was aware of such event before the insurance contract is effected.

Article 310. Right of termination of an insurance contract

1. Where the assured intentionally breaches obligations referred to in Article 308 hereof, the insurer shall be entitled to terminate the insurance contract. Where the assured is not at fault for inaccurate declaration or declaration failure in accordance with Article 308 hereof, the insurer shall not be entitled to terminate the insurance contract, but shall be entitled to collect additional insurance premiums at a reasonable rate.

2. Before any insurance coverage commences, the assured may request termination of the marine insurance contract but is bound to pay the insurer administrative costs and the insurer is bound to reimburse insurance premiums to the assured.

3. The insurer and assured shall not be allowed to terminate the insurance contract after any insurance coverage has been effected, unless otherwise agreed upon in the contract.

Where the insurance contract specifies that it may be terminated after any insurance coverage commences and the assured requests such termination, the insurer shall be entitled to collect insurance premiums from the date of commencement of such insurance coverage to the date of termination of such contract and the reimbursement shall be calculated in proportion to the remaining time. Where the insurer requests termination of the insurance contract, insurance premiums paid for the remaining period of time shall be reimbursed to the assured from the date of making the request for termination to the date of contract expiration.

4. Provisions of paragraph 2 of this Article shall not be applied to the case in which the assured requests termination of the contract of insurance for goods and contract of voyage insurance for ships after commencement of insurance coverage.

Section 2. INSURED VALUE AND SUM INSURED

Article 311. Insured value

The insured value refers to the actual value of the subject matter insured and is determined as follows:

1. The insured value of a ship refers to the total value of such ship at the date of commencement of insurance contract. This value includes value of machinery, equipment, spare parts of the ship together with all of insurance premiums. Value of the ship additionally includes advance wages paid to crew members and costs of making preparations for a sea voyage as agreed upon in the contract;

2. The insured value of a good refers to the value of a good specified in the invoice issued at the place of loading or the market price prevailing at the place and time of loading goods together with insurance premiums, freight rate imposed on carriage service and estimated interest (if applicable);

3. The insured value in respect of this freight rate is the total monetary amount constituted by the freight rate plus insurance premiums. Where the shipper buys insurance for the freight rate, it is included in the insured value of goods;

4. The insured value of other subject matter insured, except for civil liability, is the value of the subject matter insured at the place and time of commencement of an insurance contract plus insurance premiums.

Article 312. Sum insured

1. Upon effecting an insurance contract, the assured must declare the sum insured for the subject matter insured.

The sum insured is the sum that the insurer must pay the assured when an occurrence took place.

2. Where the sum insured as agreed upon in the insurance contract is less than the insured value, the insurer shall be liable for indemnity against any loss in the ratio between the sum insured and the insured value, including other costs covered.

3. Where the sum insured specified in the insurance contract is greater than the insured value, the sum in excess of the insured value shall not be admissible.

Article 313. Double insurance

1. Where two or more policies are effected by or on behalf of the assured on the same subject matter insured and maritime peril, and the sums insured exceed the insured value, the assured shall be deemed to be over-insured by double insurance.

2. In the case of the double insurance referred to in paragraph 1 of this Article, all of the insurers shall only be liable for indemnity within the extent of the insured value and each of them shall only assume liability which is ratable with the sum insured by himself.

Section 3. ASSIGNMENT UNDER THE MARINE INSURANCE CONTRACT

Article 314. Assignment of policy

1. A marine policy is assignable unless it contains terms expressly prohibiting assignment. It may be assigned either before or after loss.

2. The person who has no interest in the subject matter insured cannot assign any marine policy.

Article 315. Assignment of policy

A marine policy may be assigned by the assured’s bearing his signature on the policy or in accordance with trade practices.

Section 4. OPEN COVER INSURANCE

Article 316. Open cover insurance

1. Open cover insurance is a line of package insurance for the subject matter insured which is a single good or several goods that the assured sends or receives during a specified period of time.

2. The open-policy insurer is obliged to issue the open cover policy or certificate to each shipment or good upon the request of the assured.

Article 317. Performance of open cover contract

1. The assured in an open cover contract shall be obliged to promptly notify the insurer after receiving information relating to delivery or receipt of goods and each notification must include name of the ship, voyage route, goods and sum insured, even to the extent that goods have already been delivered or arrived at the port of discharge before the insurer receives this notification.

2. Where the assured intentionally or negligently fail to fulfill his obligations referred to in paragraph 1 of this Article, the insurer shall be entitled to terminate the open cover contract and remain entitled to insurance premiums to the same extent that such contract is performed.

Article 318. Termination of an open cover contract

Parties shall be vested with the right to terminate an open cover contract provided that they must notify each other of such termination before a period of 90 days.

Section 5. PERFORMANCE OF MARINE INSURANCE CONTRACT

Article 319. Payment of insurance premiums

The assured is bound to pay the insurer insurance premiums immediately after the contract is effected or an insurance policy or certificate is issued, unless otherwise agreed upon by parties.

Article 320. Notice of increased risk

1. After the contract is effected and there is any change to insurable risks which leads to increases in risk levels, the assured shall be liable to notify the insurer of such change promptly after his knowledge of that increase.

2. Where the assured breaches regulations laid down in paragraph 1 of this Article, the insurer shall be entitled to refuse to indemnify a part of whole of the sum insured.

Article 321. Obligations of the assured in a loss

1. Where any loss relating to maritime perils insured arises, the assured shall be obliged to take any necessary measure to prevent and control such loss and ensure that the insurer’s right of submission of claims against the person at fault for such loss is exercised. Upon fulfilling this obligation, the assured must follow sound instructions of the insurer.

2. The insurer shall not be liable for any loss arising out of the assured’s neglect or willful failure to fulfill his obligations referred to in paragraph 1 of this Article.

Article 322. Insurer’s liabilities for reimbursement

The insurer shall be responsible for reimbursing the assured for reasonable and necessary costs spent by the assured on prevention or control of loss covered; costs spent on implementation of instructions of the insurer provided for in Article 321 hereof or costs spent on defining causes and levels of such losses covered by the insurer as well as contributions to general average losses. Such costs must be reimbursed in the proportion of the sum insured and the insured value.

Article 323. Insurer’s liabilities for indemnification

1. The insurer shall be liable for indemnity against losses directly resulting from insurable risks covered by the sum insured and reimbursement for costs referred to in Article 322 hereof, even though the total sum payable to the assured may exceed the sum insured.

2. The insurer shall not be liable for losses arising from willful acts or negligence of the assured but remain responsible for indemnity against losses resulting from omission or fault on the part of the master who is also the assured during his navigation, management of the ship and losses arising through the fault of crew members or pilots.

3. Under an insurance contract for ship body extended so as to provide an additional indemnity against losses relating to liabilities in a collision, apart from liabilities to provide indemnity for losses that fall upon any subject matter insured, the insurer shall be further responsible for indemnifying third parties for their losses to the extent of the assured’s liabilities for such losses resulting therefrom, even though the total sum of indemnity may exceed the sum insured.

4. Where any maritime peril covered by an insurance contract occurs, the insurer may pay the entire sum insured to be discharged from all of other liabilities under contractual terms and conditions. In this case, the insurer is bound to send his notice of intent to the assured within a period of 07 days from the date on which the notice of maritime peril already occurring and its consequence delivered by the assured is received; the insurer shall not be allowed to claim his right of ownership of the subject matter insured to the extent that the total sum insured is less than the insured value.

In addition to providing indemnity for the total sum insured, the insurer shall be responsible for reimbursing costs in order to prevent and minimize losses or repair or recovery of the subject matter insured that paid by the assured prior to receipt of the notice from the insurer.

Article 324. Cover against successive losses

1. The insurer is liable for successive losses, even though the total amount of such losses may exceed the sum insured, unless the policy otherwise provides.

2. Where a partial loss, which has not been repaired or otherwise covered, is followed by a total loss, the assured can only recover in respect of the total loss.

3. Provisions set forth in paragraph 1 and 2 of this Article shall not exclude the insurer from liabilities for indemnification against costs incurred from his performance of policy liabilities referred to in Article 323 hereof.

Article 325. Relief of insurer’s liabilities

1. Unless otherwise agreed upon in an insurance contract, when insuring a ship and freight, the insurer shall be discharged from liability for losses arising out of the following circumstances:

a) The ship is not seaworthy at the time of departure, except to the extent that the ship contains latent defects or unavoidable events take place even though the assured has exercised his due care of this;

b) Substances or materials of explosive and inflammable nature or other dangerous goods are loaded onto the ship which is inconsistent with regulations on carriage of such goods if the assured knows but the insurer does not know this.

2. Unless otherwise agreed upon in an insurance contract, in insurance on goods, the insurer shall be discharged from liability for losses arising out of the following circumstances:

a) Nature of goods;

b) Escape, discharge, wastage or natural wear and tear of goods;

c) Insufficiency or defective conditions of packing;

d) Delay in supply of goods.

3. Unless otherwise agreed upon in an insurance contract, the insurer shall not be liable for losses of subject matters insured resulting from wars or military acts to whatever extent and consequences arising therefrom; extortions; commotions; strikes or losses resulting from procurements, requisitions, acquisitions, arrests, destructions of the ship or goods under any military orders or decisions of competent authorities.

Section 6. ASSIGNMENT OF RIGHT OF CLAIM FOR INDEMNITY

Article 326. Assignment of right of claim for indemnity

When paying indemnity to the assured, the insurer shall be vested with the right to claim back the sum which he has been paid as indemnity against the person at fault for such losses (hereinafter referred to as third party). The insurer shall enforce this right in accordance with regulations on the assured.

Article 327. Obligations of the assured in submission of a claim against third parties

1. The assured shall be obliged to provide the insurer with every news, materials and evidence that he possesses and apply necessary measures to ensure that the insurer may enforce his right of claim against third parties.

2. Where the assured fails to secure his obligations referred to in paragraph 1 of this Article or commits any fault leading to the insurer's failure to exercise his right, the insurer shall be entitled to discharge from obligations to pay indemnity or reduction in such indemnity at a reasonable rate.

3. Where the assured has received payment of indemnity against losses from the third party, the insurer shall be bound to pay only differential between an amount of indemnity payable agreed upon in the insurance contract and an amount of indemnity that the assured received from the third party.

Article 328. Guarantee of general average contribution

1. The insurer must sign a guarantee of general average contribution that is restricted to an amount falling within the sum insured by a commitment on general average contribution made by the assured, unless otherwise agreed upon in the insurance contract.

2. When distributing general average losses, the assured is obliged to exercise due care of the insurer’s interests.

Section 7. ABANDONMENT OF SUBJECT MATTERS INSURED

Article 329. Right of abandonment of subject matters insured

1. The assured shall be entitled to abandon any subject matter insured and assign the insurer his rights and obligations related to such subject matter in order to receive any indemnity against a total loss to the extent that total loss of such subject matter insured is unavoidable or prevention of such loss may incur costs which are much greater than the value thereof.

2. Right of abandonment of a subject matter insured may be applicable in the event that a ship is wrecked, extorted, damaged due to marine accidents to the extent that it can not be repaired, or it has proved uneconomical to repair, recover or pay a ransom to get the ship back.

3. Right of abandonment of subject matter insured as referred to in paragraph 2 of this Article shall be enforced on goods, even if charges for repair or carriage of goods to the port of discharge is much greater than the market price of such goods determined at the port of discharge.

Article 330.Method of and duration for exercise of right of abandonment of subject matters insured

1. Exercise of the right of abandonment of a subject matter insured must be declared in writing whereby bases for enforcement of right of abandonment thereof are clearly stated.

2. Declaration of abandonment of the subject matter insured must be sent to the insurer within a reasonable duration which does not exceed 180 days from the date on which the assured was aware of events as bases for enforcement of right of abandonment, or within 60 days from the date of expiration of the insurance term to the extent that the ship or any good is extorted or ownership thereof is lost due to other causes; after the duration stipulated herein, the assured shall be deprived of the right thereof but remain entitled to claim any indemnity against losses.

3. Any condition is not attached to abandonment of the subject matter insured; if the abandonment is accepted, neither the insurer nor the assured is entitled to change his decision.

Article 331. Obligations of the assured in declaration of abandonment of the subject matter insured

In declaration of abandonment of the subject matter, the assured is bound to provide the insurer with information about the property ownership in respect of the subject matter insured, other sums insured of which limits that the assured was aware.

Article 332. Duration for the insurer’s acceptance or waiver of abandonment of the subject matter insured

1. Within a duration of 30 days of receipt of a declaration of abandonment of the subject matter insured, the insurer is bound to notify the assured of whether such abandonment is accepted or waived; after this duration, the insurer shall be subject to loss of his right of waiver thereof.

2. Rights and obligations related to the subject matter insured shall be assigned to the insurer immediately after the insurer sends a notice of acceptance of abandonment; the insurer may not claim such right.

3. Where declaration of abandonment of the subject matter insured is consistent with regulations but the insurer rejects such abandonment, the assured shall remain entitled to claim for any indemnity.

Article 333. Indemnity against a total loss

1. An estimated total loss refers to an loss arising out of damage to a ship or any good whereas such damage causing the total loss is unavoidable or costs of repair or recovery thereof exceed value of the repaired ship or the market price of such good determined at the port of discharge; in this case, the assured must send a declaration of abandonment of the subject matter insured to the insurer prior to claiming for payment of the sum insured.

2. An actual total loss refers to a loss resulting from total destruction of or damage to a ship or any good which is unrecoverable, or missing ship along with goods on board; in this case, the assured may claim coverage from the insurer for the sum insured without having to declare abandonment of the subject matter insured.

3. Where a missing ship is the insured ship under a fixed-term insurance contract, the insurer shall only be liable for any indemnity if he receives the last information about that ship prior to its expiration of coverage term. The insurer shall not be liable for any indemnity if it is proved that the ship has gone missing after the coverage term expires.

Article 334. Reimbursement for the sum insured

Where the insurer has paid indemnity and the ship then escape from any maritime peril, the insurer shall be entitled to request the assured to continue his ownership of such ship and reimburse such given indemnity after indemnity against the partial loss of such ship is deducted therefrom on condition that such partial loss is directly consequential on maritime perils insured.

Section 8. CLAIM PAYMENT

Article 335. Liability to pay claims

When paying indemnity against losses of the subject matter insured, the insurer shall be entitled to request the assured to explain related events, provision of materials or necessary evidence for assessment of such events and loss levels.

Article 336. Statute of limitation for submission of claims regarding a marine insurance contract

The statute of limitation for submission of a claim regarding marine insurance contract lasts for 02 years from the date on which any dispute arises.