船舶推定全損에 관한 硏究

Abstract

1) The value of the wreck must not be added.

2) No deduction is to be allowed in respect of general average contributions to the vessel's repairs payable by other parties (e.g. G/A contribution of cargo to the refloating damage of the vessel or a probable recovery from the other vessel in case of a collision)

3) The ship's proportion of future salvage and general average should be added. The 'future', I think, should be construed as after the casualty, no the notice of abandonment, which is normally applied in practice. However, it is required to amend ITC-Hulls Clauses or International Hull Clauses to clarify to cover the cost after the casualty.

4) No deduction is to be made of one-third new for old.

5) Cost of several distinct casualties may not be aggregated. Only cost relating to a single accident or sequence of damages arising from the same accident shall be taken into account.

Finally, considering clause 21 of International Hull Clauses which the figure to be taken into account in assessing whether the vessel is a CTL is now 80% of the insured value rather than 100%, I suppose that the using a compromised total loss settlement shall be made, in practice, in place of carrying out uneconomical repairs, not being a CTL. However, there is no provision in the MIA, nor in the policy for this type of settlement and controversy could rise. Therefore, the insured value of vessel shall be closed to the cost of market value and it is a necessary to appoint a fair and reasonable average adjuster to settle such a controversial claim as soon as possible.

1) where an actual total loss appears to be unavoidable

2) where the assured is deprived of the ship and is unlikely to recover it

3) where the estimated cost of recovering/repairing the ship would exceed the value of the ship when repaired.

Most CTL cases fall within category 3) above. As to how the value of the ship when repaired is to be arrived at, the MIA givers little guidance. However, for a long time it has been customary for hull underwriters to take the insured value as the repaired value in ascertaining whether the ship is a CTL, which is evidenced by clause 19 of ITC-Hulls(1/10/83) and 21 of International Hull Clauses.

3. The estimated cost of repair should cover all expenses which would have been necessary had the vessel been repaired, including salvage charge, temporary repairs, class survey fee & etc. In calculating the probable cost of recovering/repairing the vessel which has to be compared with the insured value, the followings should be taken into account

1. Under the MIA, a total loss of the a ship may be either an actual total loss or a constructive total loss. In practice, there is another form of total loss named compromised total loss. But it is actually partial loss because it is used in the circumstance of not being a total loss and it pays less than the sum-insured.

2. Under section 60 of MIA, a constructive total loss of a ship may be claimed in any of the circumstances below

and on the notice and acceptance of abandonment for a long time. Total loss caused by the insured peril is basically covered by a hull policy which has minimum coverage such as TLO(Total Loss Only). In marine insurance, a loss amy be either total loss or partial loss but total loss casualties of ships continue to cover steadily in spite of the developments in shipbuilding technology, navigation equipment and communication method in recent years.

The Institute Time Clauses-Hulls, which are mostly used in hull insurance all over the world, were amended in 1970 and 1983 so several controversial points on total losses are clarified. However, there remain some points to be clarified.

In recently, The Joint Hull Committee's(JHC) ambitious project to product a new set of hull insurance clauses which accurately reflect the needs and requirements of today's shipowners and insurers has been completed on time. The new clauses, which have been drafted following extensive consultation with shiponwer and other interested parties, will be available for use form 1st November, 2002 and wll be known as the International Hull Clauses.

The purpose of this thesis is to examine closely rule of interpretation when a ship damaged on the sea consider as constructive total loss according to M.I.A. and concrete specially the extent of indemnity when policy included the content that insurer shall recover total loss addition to the costs.

The findings of this study are briefly summarized as follows

There has been much controversy between the insurer and the assured in ascertaining whether there is a total loss or not