| Carriers,based on commercial convenience and the need for risk transfer,often choose to purchase cargo insurance that is not well matched to their own interests.Through a review of cases,a summary of the different patterns of judicial decisions and an analysis of four typical insurance models,attention is focused on the situation where the carrier is the insured.With the frequent occurrence of insurance accidents and the lack of mandatory regulations and guidance,China’s insurance jurisprudence is also divided on this issue,and the current Insurance Law still adopts the vague provision of "legally recognized interests",which leads to the carrier’s rights not being protected and also hinders insurance transactions.From the development of the theory of property insurance interests,both Continental law system and British law have expanded the interpretation of insurance interests.Specifically on the issue of the carrier’s insurance coverage for cargo,the carrier should have an insurance interest in the goods carried,from the perspective of possession or expectation there is room for reasonable discussion,combined with the value of the principle of good faith and credit and the need for the prosperity of the insurance business,the recognition of the carrier has an insurance interest in the existence of a reasonable.Based on the modern trend of insurance subdivision,the carrier most of the time does not have insurable interest under cargo insurance,but it is not appropriate to deny this in general,and individual cases need to be discussed in the context of insurance provisions.The determination of the validity of the contract is a prerequisite for the exploration of the core issue of insurance claims,and insurance benefits are irrelevant to the validity of the contract.The conclusion of a cargo insurance contract shall be valid as long as it does not contravene the mandatory provisions of the law.The legal status of the carrier in the freight insurance contract,should be distinguished for their own insurance and insurance for others to study the situation,according to determine whether the legal status of the carrier is limited,the exercise of the right to claim insurance benefits should also be in accordance with the heart of the insured’s true intentions,distinguish the interests of the cargo owner and their own interests insured.Considering that some carriers are in a weaker position compared to the insurers,the exercise of the insurer’s right of subrogation to the carrier is questionable and worthy of reflection for the purpose of balancing interests.From the perspective of insurance interests,the solution to the legal issue of carriers taking out cargo insurance ultimately comes down to the protection of the carrier’s interests.There are three specific protection paths.one is the form of freight insurance contract for special instructions,the insurance interests into the scope of the insurer’s obligation to explain.The second is the use of purposive interpretation methods,the "legally recognized interests" to expand the interpretation;the use of systemic interpretation methods,the insurer’s duty of care under the form contract to regulate.The third is to apply a modified contractual negligence regime,expanding the scope of compensation under the traditional contractual negligence doctrine and relaxing the fault element in determining contractual negligence in order to respond to the need for protection of the carrier’s rights. |
PDF Full Text Request