해상보험계약상 영국법 준거약관과 보험법의 적용에 관한 연구

Abstract

A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the assured, in manner and to the extent thereby agreed, against marine losses, that is to say, the losses incident to marine adventure. And the document embodying the contract of marine insurance is called a 'policy', and a contract of marine insurance is inadmissible in evidence unless it is embodied in a marine policy in accordance with Marine Insurance Act.

The Lloyd's S.G. form of policy was used for insurances of many kinds - hulls, goods, freight and profits, etc., by the way, it has been superseded by a new form of marine policy as its terms did not exactly express the requirements of the parties to the contract. And these marine policies have usually coupled with the attachment of the standard clauses or special wording relevant to the particular type of insurance, known as 'Institute' clauses such as Institute Time Clause- Hulls(hereinafter referred to as "ITC-Hulls") and Institute Cargo Clauses (A), (B) and (C) (hereinafter referred to as "ICC (A),(B),(C)"), which are widely used in marine insurance contracts throughout the world.

On the other hand, there is English law and practice clause in the new form of marine policy and in the Institute Clauses. The positioning of the English law and practice wording in the marine policy and in the Institute Clauses means that any disputes emerging from legal cases on marine insurance contracts should be governed and construed according to English law and practice.

However, the ITC-Hulls on hull insurance policy contains the specific reference to choice of law so called English law and practice clause in a prominent position immediately after the headline describing the particular clauses : "This insurance is subject to English law and practice", while the body clause on cargo insurance policy recently uses another wording of English law and practice : "Notwithstanding anything contained herein or attached hereto to the contrary, this insurance is understood and agreed to be subject to English laws and practice only as to liability for and settlement of any and all claims", which also coupled with the attachment of the ICC (A),(B),(C) in which stated the standard English law and practice clause same as ITC-Hulls.

Hence, differences of opinion can arise as to the interpretation of English law and practice clause, especially in the cargo insurance policy, as the body clause is containing the restrictive wording such as "only as to liability for and settlement of any and all claims". In respect of legal nature of English law and practice clause used in the marine insurance contracts, there are two different opinions which regarded it as 'choice of proper law' and 'incorporation by reference'. So it is necessary to review these opinions by considering synthetically all the possible factors concerning contracts.

In relation to these opinions, it can be reviewed by a study in respect of the Private international law, so we should regard the legal nature of English law and practice clause as 'choice of proper law' rather than 'incorporation by reference'. And according to the restrictive expression or wording of English law and practice clause in cargo insurance policy, it is understood as a partial designation that the clause states 'only as to liability for and settlement of any and all claims', and the other part such as the effect, validity and legality, etc. of marine insurance contracts will be subject to Korean law.

In addition to that, first of all, it is essential to think over some major concepts such as 'the third party rights against insurers', 'the insurer's duty to explain the policy clause' and 'the duty of disclosure' in marine insurance on the basis of legal nature of English law and practice clause, and then it is necessary to take account of these concepts by the comparative analysis of Korean and English marine insurance law which are specified respectively in Korean commercial law and English Marine Insurance Act that codified the law cases relating to marine insurance as at 21st December 1906 and is now the basis of the marine insurance principles of today.

Thus, after identifying and analyzing the principal distinctions between the Korean and English marine insurance law, the rules in marine insurance law can be applied to several cases concerning the some major concepts reviewed above on the basis of the legal nature of English law and practice clause.