Marine Open Cover Legal Research

As a kind of long-term insurance contract for carriage of goods, "open cover" originated from "floating policy" provided in the Marine Insurance Act,1906(UK), and it has notable features which can distinguish it from general insurance contracts. In China's existing legal framework, only Artile 231-233 of Maritime Code of the People's Republic of China have provisions for "open cover", but the provisions are rough. This situation has resulted in bad things for practice ,which contains: parties of the contract can not understand the nature of "open cover"; they can not grasp rights and obligations for each other,etc. And it has also caused a series of difficulties to justice.The thesis has a comprehensive analysis on "open cover", and it consists of four chapters:In the first chapter, I discussed the definition and the natue of "open cover". For the defination, through analysing Sino-British legislative provisions and the views of scholors, as well as comparing "open cover" and "floating policy", I tried to get a precise definition of "open cover". For the nature, I compared and analysed two different points of view for the nature of "open cover"—"precontract doctrine" and "macrocontract doctrine", and then concluded that an open cover is a macrocontract, rather than a precontract.In the second chapter, I discussed the establishment and the effectiveness of the open cover. By analysing the relevant laws, and considering the nature of "open cover", I got such conclusions: an open cover must be a contract in written form according to existing laws; whether issuing an open policy does not affect the establishment of the open cover; whether paying insurance does not affect the establishement either. For the effectiveness of the open cover, I mainly disscussed the problem of insurable interest under an open cover.I discussed the insurance term under an open cover and the problem of retrospective effect in the third chapter. According to the nature of "open cover" and "warehouse to warehouse" clauses, I did an in-depth analysis on the starting time of insurance liabilities under an open cover, which is called "automatically start as soon as the goods are shipped". I reconstructed the viewpoint of "an open cover's retrospective effect",and put forward an opinion, said that so-called retrospective effect is for divided contracts under an open cover. For the retrospective effect under a special circumstance—" notification after the accident", I disscussed it while considering whether the insured knows the accident or not.The last chapter is focused on the notification of the insured under an open cover. I put forward a point of view that key for the obligation to notify the insurer is full declaration. I also expounded the reasons and methods to identify full declaration in practice. It holds such opinions as: in the legal attributes, such notification shall be considered as a warranty by the insured; legal consequences for contravening the obligation to notify the insurer should be for the whole open cover, but they only affect the carriage of goods after this notification. On the basis of the analysis of the relevant memo of recent judicial meeting, I concluded that whether the insured notifies the insurer of the occurrence of the peril would affect insurance liability of the insurer under an open cover.