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Items
Details
Author
Title
Marine insurance fraud / Baris Soyer.
Published
Milton Park, Abingdon, Oxon [UK] ; New York, NY : Informa Law from Routledge, 2014.
Call Number
KD1845 .S692 2014
ISBN
9780415842426 (hardback)
0415842425 (hardback)
9781315795010 (ebook)
1315795019 (ebook)
0415842425 (hardback)
9781315795010 (ebook)
1315795019 (ebook)
Description
xxxiv, 344 pages ; 26 cm.
System Control No.
(OCoLC)827777619
Summary
"Helpfully split into 3 parts, this invaluable book provides a comprehensive and coherent legal analysis of the impact of fraud on marine insurance contracts.Part 1 analyses various market failings, which create a suitable environment for fraud. It is also intended in this part to consider the meaning of fraud from a legal perspective. Part 2 adopts a focused legal approach, and analyses the impact of fraud committed by parties to the insurance contract, i.e., assured, brokers and insurers. Part 3 examines the extent to which fraudulent activity is covered by standard marine policies, and deals with the fraudulent activity committed by third parties against the interest of the parties to the insurance contract.This book will be of huge assistance to practitioners specialising in marine insurance, as well as professionals, academics and students. "-- Provided by publisher.
"This book provides a comprehensive and coherent legal analysis of the impact of fraud on the position of various parties to a marine insurance contract, as well as the cover provided by standard marine policies. The issues under discussion in this invaluable guide are also equally relevant in the context of non-marine insurance contracts. Helpfully divided into two parts, the first part deals with the impact of fraud committed by parties to the assured, brokers and insurers. The second part analyses the extent to which standard marine policies cover the fraudulent and dishonest activity of third parties to an insurance contract. This book will be of huge practical assistant to practitioners specialising in marine insurance as well as insurance generally, and to professionals, academics and post-graduate students"-- Provided by publisher.
"This book provides a comprehensive and coherent legal analysis of the impact of fraud on the position of various parties to a marine insurance contract, as well as the cover provided by standard marine policies. The issues under discussion in this invaluable guide are also equally relevant in the context of non-marine insurance contracts. Helpfully divided into two parts, the first part deals with the impact of fraud committed by parties to the assured, brokers and insurers. The second part analyses the extent to which standard marine policies cover the fraudulent and dishonest activity of third parties to an insurance contract. This book will be of huge practical assistant to practitioners specialising in marine insurance as well as insurance generally, and to professionals, academics and post-graduate students"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Available in Other Form
Online version: Soyer, Bariş. Marine insurance fraud. Abingdon, Oxon [UK] : Informa Law from Routledge, 2014 9781315795010
Record Appears in
Table of Contents
Foreword
vii
Preface
ix
Table of Cases
xvii
Table of Legislation and Statutory Instruments
xxxiii
PART 1
ch. 1
General Overview Of Fraud In Marine Insurance
3
I.
Fraud in Marine Insurance and Contributing Factors
3
(1).
Nature of Marine Business and Organisation of Insurance Companies
4
(2).
Nature of Marine Policies
5
(3).
Absence of Successful Prosecutions/Convictions for Marine Fraud
6
II.
Scarcity of Fraud Litigation in Marine Insurance and Consequences
9
III.
Fraud -- Competing Values
13
ch. 2
Fraud Committed By The Assured At The Outset
17
I.
Introduction
17
II.
Pre-contractual Duty of Utmost Good Faith
18
(1).
Misrepresentation
19
(A).
False Statement
19
(B).
Materiality
27
(C).
Inducement
29
(2).
Non-disclosure
33
(A).
Facts Known by the Assured (Actual Knowledge of the Assured)
33
(B).
Facts Deemed to Be Known by the Assured (Constructive Knowledge of the Assured)
35
(C).
Materiality and Inducement: Scope of the Duty of Disclosure
38
(D).
Moral Hazard and Impact of Fraud on the Scope of Disclosure Duty
39
(E).
Facts which Need Not Be Disclosed
44
(a).
Circumstances which are actually known or presumed to be known to the insurer
44
(i).
Matters of common notoriety and knowledge
45
(ii).
Matters that ought to be known to the underwriter in the ordinary course of his business
45
(b).
Circumstances which diminish the risk
48
(c).
Circumstances which are waived
49
(i).
Waiver by express agreement
49
(ii).
Implied waiver by asking limited questions
50
(iii).
Implied waiver by failing to ask further questions
51
(iv).
Impact of fraud on implied waiver
53
(d).
Circumstances which are covered by a warranty
53
(3).
Remedies
54
(A).
Avoidance
55
(a).
Affirmation
57
(b).
Express clauses
61
(c).
Breach of insurer's continuing duty of utmost good faith
61
(d).
Statutory control
62
(B).
Damages
62
(4).
Miscellaneous
65
(A).
Impact of Misrepresentation/Non-disclosure on the Following Market
65
(B).
Scope of Pre-Contractual Duties at the Time of Renewal
67
(C).
Criminal Liability
67
III.
Cover Not Attaching
68
ch. 3
Fraud Committed By The Assured At The Post-Contractual Stage
69
I.
Introduction
69
II.
Post-Contractual Instances of Good Faith
73
(1).
Clauses/Instances Requiring the Assured to Supply Information
73
(2).
Notice of Loss and Co-operation Clauses
77
(3).
'Follow the Settlement' Clauses in Reinsurance Agreements, and the Impact of Good Faith on Reinsurance Agreements
81
(4).
Subsequent Contractual Agreements Stemming from the Insurance Contract
83
(5).
Claims Context
84
III.
Fraudulent Claims
89
(1).
Definition of Fraudulent Claim
89
(2).
Types of Fraudulent Claim
93
(3).
Remedies
107
(A).
Common Law Remedy of Forfeiture
107
(B).
Contractual Remedies
110
(a).
Fraudulent claims clauses
110
(b).
Implied term analysis
113
(C).
Section 17 of the MIA 1906
117
(D).
Other Remedies
118
ch. 4
Fraud Committed By The Insurer
123
I.
Pre-Contractual Stage
123
(1).
Misrepresentation, Fraud and Remedies
123
(2).
Non-disclosure, Fraud and Remedies
129
II.
Post-contractual Stage
134
(1).
Exercising Discretionary Contractual Rights
136
(2).
Restricting the Right of Avoidance
138
(3).
Handling of Claims
143
(A).
Tort of Deceit
145
(B).
Criminal Remedies
145
(C).
Contractual Analysis
146
(4).
Settlement of Claims
149
ch. 5
Fraud Committed By Independent Agents Of The Parties
151
I.
Introduction
151
II.
Pre-contractual Stage
152
(1).
Insurance Brokers and Fraud
152
(A).
Broker's Duty of Utmost Good Faith and Fraud
152
(B).
Signing Indication and Fraud
158
(C).
Sub-brokers and Fraud
162
(D).
Binding Authorities and Fraud
164
(2).
Underwriting Agents
171
III.
Fraud at Post-contractual Stage
174
ch. 6
Potential Impact Of Law Reform
175
I.
The Current Reform Initiative
175
(1).
Pre-contract Information Duties
176
(A).
Proposed Change on Remedies
176
(B).
Proposed Change on the Substance of the Duty
178
(a).
Change-in-materiality test
178
(b).
Redefining the scope of the duty to make fair representation
180
(C).
Broker's Duty of Disclosure
181
(2).
Post-Contractual Duty of Good Faith -- Fraudulent Claims
182
(3).
Post-Contractual Duty of Good Faith -- Late Payment of Damages
185
II.
The Way Forward
186
PART 2
ch. 7
Impact Of Fraud And Other Dishonest Activity on insurance coverage
191
I.
Theft
192
(1).
'Theft' in Contemporary Marine Policies
192
(2).
Relationship between 'Theft' and Perils Excluded from Coverage
197
(A).
Theft, Conversion and Seizure
197
(B).
Theft and Mysterious Disappearance Clauses
198
II.
Piracy
200
(1).
Piracy in Contemporary Marine Policies
201
(2).
Relationship between Piracy and Perils Excluded from Coverage
205
(A).
Piracy, Seizure and Capture
205
(B).
Piracy and Riot
206
(C).
Piracy and Malicious Acts Exception
207
(3).
Piracy in Action - A Legal Analysis
209
(A).
Making a Claim for Piracy -- Actual and Constructive Total Loss Caused by Piracy
209
(B).
Ransom Payment -- Insurance Implications
215
(C).
Double Insurance
220
III.
Barratry
221
(1).
Definition and Scope of the Peril
221
(2).
Barratry in Contemporary Marine Policies and Burden of Proof Issues
224
(3).
Relationship between Barratry and Other Perils
226
IV.
Scuttling Frauds
228
V.
Phantom Ship Frauds
231
(1).
Modus Operandi and Current State of Play
231
(2).
Impact of Fraud on Cargo Policies
233
(A).
Section 44 of the MIA 1906 -- Does the Risk Attach at All?
233
(B).
Background and Function of S 44 of the MIA 1906
234
(C).
Recent Judicial Developments
237
(D).
Contractual Solution -- The Way Forward
241
Appendices
Appendix 1
Marine Insurance Act 1906
245
Appendix 2
Misrepresentation Act 1967
273
Appendix 3
Fraud Act 2006
275
Appendix 4
Institute Time Clauses -- Hulls (1/10/83)
293
Appendix 5
International Hull Clauses (1/11/03)
301
Appendix 6
Institute Cargo Clauses (A) (1/1/09)
325
Appendix 7
Institute Cargo Clauses (B) (1/1/09)
328
Appendix 8
Institute Cargo Clauses (C) (1/1/09)
331
Index
335