Legal aspects of Chinese marine insurance against the background of English law

Abstract

In Chinese law, the legal provisions in respect of marine insurance contracts are specifically provided for in Chapter 12 of the Maritime Code of the People's Republic of China (CMC). The Chapter 12 is drafted by reference to the English Marine Insurance Act 1906 to a great extent. However, the Chinese legal system, which generally belongs to civil law system, is greatly different from the English legal system which belongs to common law system. Under present situation, one fundamental problem, which is imperative to be resolved and researched in this thesis, is how to apply the existing Chinese general legal principles and provisions to interpreting the special provisions related to marine insurance contracts in CMC and other Chinese statutes so as to properly and reasonably resolve particular disputes concerning marine insurance contracts under Chinese legal system. In this thesis, a systematic and comprehensive research has been conducted on the relevant Chinese laws related to some aspects of marine insurance contracts under CMC, Insurance Law of China, Chinese contract law and Chinese civil law etc. Due to the similarity between Chinese law and English law in respect of marine insurance, in this thesis, the corresponding provisions in English law has been discussed as a background in the course of studying the Chinese marine insurance law. This thesis consists of three chapters, that is, principle of utmost good faith, warranties, and subrogation and abandonment. The main topics in Chapter 1 include duty of disclosure in general, tests of materiality, loss of remedies for breach of duty of disclosure, post-contractual duty of utmost good faith and insurer's duty of utmost good faith. The topics discussed in Chapter 2 primarily cover nature of warranties, identification of warranties, legal consequences of breach of warranties, waiver of breach of warranties, and warranties and seaworthiness. The main topics in Chapter 3 contain right of subrogation in general, duties of assured to assist insurer in exercising right of subrogation, distribution of recoveries from third party, defences against insurer's subrogated action, and relationship between abandonment and subrogation.