어선보험약관의 담보위험에 관한 연구

Abstract

Fishing vessel insurance of National Federation of Fisheries Cooperatives indemnifies the assured against marine losses by reason of maritime perils. This insurance contract is to indemnify the losses incurred by reason of perils of the seas, that is to say, sinking, stranding, collision, extraordinary action of winds waves and fire, damage, salvage. Therefore this insurance is a rational protective measures for preserving fishermen's property by the exposure to maritime perils.

This insurance contract is embodied in fishing vessel insurance clauses and is effected between the assured, the fishermen and the insured, National Federation of Fisheries Cooperatives.

But there may be some problems on the perils covered by fishing vessel insurance clauses because these clauses are not clearly and accurately prescribed in part. Especially where the assured may claim payment from fortuitous accidents or casualties of the seas causing the loss, they used to raise a question in argument about the ambiguity of these clauses. So these problems may need to be reformed for the purpose of preventing or decreasing those of the assured, the fishermen.

After drawing out some problems on the perils covered by fishing vessel insurance clauses, this thesis will suggest the improving schemes on the perils covered by these clauses with studying Marine Insurance Act, 1906, hereinafter called MIA, Institute Time Clauses-Hulls, 1983, hereinafter called ITC-Hulls and P&I insurance.

To research this, papers and books published at home and overseas are referred to and the practical experiences of the writers' taking charge of fishing vessel insurance work for about 20 years are helpfully added.

Problems on the perils covered by these clauses are divided into both those against the insurance theory and those in these clauses.

Problems of these clauses against the insurance theory are as follows :

First, as the problems regarding the perils covered principle by maritime perils, these clauses are seemed to be adopted through the named-perils. But these clauses are not specifically designated by the perils covered, so it is difficult to judge whether the perils are insured against.

Second, as the problems regarding the proximate cause and the reasonable cause, the former is expressed as 'caused by' and the latter is expressed as 'attributable to'. But this is not specifically designated, so causes confusion for interpretation of these clauses.

Third, as the problems regarding warranty of seaworthiness, these clauses are not a voyage policy but a time policy. So the provisions of this section seem not to be suitable for a time policy.

So, problems in these clauses are summarized as follows :

First, as the problems regarding the term 'damage', these are embraced in the scope of perils. So this is not only suitable for the insurance theory but also perils insured against unnecessary misunderstanding of the assured about payment of claims may occur.

Second, as the problems regarding the term 'loss', this means marine loss. This is not suitable for the provisions of this section because this includes several meanings, such as physical loss, expenses and collision liability.

Third, as the problems regarding salvage charges and sue and labour charges, these are used same meaning. So the former seems to be payed in addition to claims paid like the latter, the meaning of these terms is confused.

Fourth, as the problems regarding faults in respect of unlicensed master and chief engineer, and fishing vessel under 29 gross tons and fishing vessel over 30 gross tons are equally dealt with even though the former are pooler than the latter.

Improving schemes on the perils covered by these clauses is divided into improving schemes and defects in these clauses.

Improving schemes in these clauses are as follows :

First, as improving schemes regarding the perils covered by principles of maritime perils, this will be obviously specified like the perils clauses of ITC-Hulls and expanded to be of great advantage to the fishermen.

Second, as improving schemes regarding the proximate cause and the reasonable cause, in practice the latter seems to be adopted. A standard for causation needs to be established to avoid the confusion for interpretation of these clauses or for practice.

Third, as improving schemes regarding warranty of seaworthiness, the provisions of this section shall be revised into the provision of MIA because this is unsuitable for a time policy. Also Article 17.3.1 and Article 17.4.1 which are warranty of legality shall be embraced in Article 17.1. Therefore the strict regulations as an implied warranty will be consistently preserved.

Fourth, as improving schemes regarding 'damage', this term will be revised or deleted because this is not to be embraced in the scope of perils.

Fifth, as improving schemes regarding the term 'loss', this term will be revised as 'loss or damage' because this is not suitable for the provisions of this section.

Sixth, as improving schemes regarding salvage charges and sue and labour charges, these will be obviously specified not only by the concept but also the measure of indemnity.

Seventh, as improving schemes regarding faults in respect of unlicensed master and chief engineer, this will be adjusted to be an advantage to a smaller fishing vessel.

Improving defects in these clauses are as follows :

First, the damage for 'violent theft by persons from outside the vessel' will be covered.

Second, P&I insurance will be carried out for fishing vessel. For example, liabilities for non-contact damage, wreck removal and oil pollution will be covered these clauses.

The offshore fishing vessel shall be undertaken to be insured by fishing vessel insurance in the near future.

Finally, regarding improving defects in these clauses and to undertake the offshore fishing vessel, government must play an important role for the fishermen.