A Study On The Legal Issues Of Open Covers In Marine Insurance

Open marine insurance contract originated from floating insurance in British marine insurance market.To general insurance contract character,the underwriter and insurant are met certainly between each specific insurance business negotiates insurance condition.But the advent of open cover breaks with this common practice.In open cover,the insured will usually sign open cover with the insurer for a number of cargo shipments in a future period.This saves the insurer from having to negotiate every transaction,and to ensure that the insured is indemnified in the event of a bona fide omission.Because make an appointment with open cover can assure an underwriter to obtain long-term and stable insurance income already,make insurant need not undertake the risk of omission of report for every specific insurance business again at the same time,so at present open cover already became a kind of very common form in marine insurance.However,there is a lack of more detailed provisions on marine open cover contracts in law in China,which leads to the inability of courts in different regions to follow in judicial trials and causes a lot of disputes.This paper tries to study and discuss the legal problems in the contract of Marine open cover through the comparison of domestic and foreign laws and theoretical analysis,and gives some suggestions on the basis of full argumentation.Chapter one is an overview of marine open cover contract.Firstly,this paper introduces the definition of marine open cover insurance contract from the perspective of comparative law.Then through the analysis of China's legal system and the provisions of marine open insurance contract in articles 231 to 233 of the maritime law,this paper expounds the current domestic understanding of the connotation of marine open insurance contract.Secondly,under British law,marine open cover insurance contracts are divided into three types,they are:facultative open cover,standard/obligatory open cover,and facultative/obligatory open cover.In three different types of open cover contracts,the insurer and the insured assume different obligations respectively.And the open cover stipulated in the maritime law of China belongs to the standard/obligatory open cover.Finally,this paper discusses the time when the contract of marine open cover is established and becomes effective,and makes it clear that the establishment and effectiveness of the contract are not based on the issuance of voyage insurance policies and the delivery of insurance premium.At present,there are three different theories on the nature of marine open cover contracts in academia.The second chapter discusses the nature of marine open cover contract.In the early judicial cases,the Supreme Court once defined open marine insurance contract as pre-arranged contract.However,with the deepening of domestic understanding of open contract,more and more people believe that open contract should belong to insurance contract rather than pre-arranged contract.Moreover,the relationship between marine open cover contract and voyage policy should be the relationship between total contract and sub-contract,rather than the relationship between open pre-arranged contract and this contract.The third chapter mainly discusses the retroactivity of voyage policy in marine open cover contract.The theoretical basis of insurance contract to compensate for the goods with insurance accident is that the goods have insurance interest.But the next voyage policy under a Marine open cover is often issued later than the shipment of the goods.If the goods have been damaged prior to the issuance of the voyage policy,the insurer shall still be liable to the insured in good faith.The reason why the voyage policy under marine open cover can break the principle of insurable interest lies in the existence of "loss or not lost" clause in the contract and the application of the subjective uncertainty theory.Of course,in order to balance the interests of the insurer and the insured,the retroactivity of the voyage insurance policy must meet certain conditions before it becomes effective.Chapter four mainly discusses the effectiveness priority of marine open cover contract and voyage policy when the contents of them are inconsistent.Voyage insurance cover is the complement to the open cover,so the voyage insurance cover ought to apply to the open cover.At the same time,when the contents of the voyage insurance policy are in conflict with the open insurance contract,the contents of the voyage insurance policy shall be regarded as the change of the open insurance contract,and the disputes arising therefrom shall be subject to the contents of the voyage insurance policy.As for the choice of arbitration clause as the dispute settlement clause,it should be judged according to the specific situation of the dispute.Finally,after analyzing the existing problems of China's marine open cover insurance system and referring to the existing foreign models,this paper puts forward several suggestions for China's current marine open cover insurance legal system.