[1906年英国海上保险法]

Loss and Abandonment

Included and excluded loss

55. (1) Subject to the provision of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but subject as aforesaid, he is not liable for any loss which is not proximately caused by a peril insured against.
(2) In particular -
(a) The insurer is not liable for any loss attributable to the wilful misconduct of the assured, but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence of the master or crew;
(b) Unless the policy otherwise provides, the insurer on ship or goods is not liable for any loss proximately caused by delay, although the delay be caused by a peril insured against;
(c) Unless the policy otherwise provides, the insurer is not liable for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject matter insured, or for any loss proximately caused by rats or vermin, or for any injury to machinery not proximately caused by maritime perils.

Partial and total loss

56. (1) A loss may be either or partial. Any loss other than a total loss, as hereinafter defined, is a partial loss.
(2) A total loss may be either a actual total loss, or constructive total loss.
(3) Unless a different intention appears from the terms of the policy, an insurance against total loss includes a constructive, as well as an actual, total loss.
(4) Where the assured brings an action for a total loss and the evidence proves only a partial loss, he may, unless the policy otherwise provides, recover for a partial loss
(5)? Where goods reach their destination in specie, but by reason of obliteration of marks, or other wise, they are incapable of identification, the loss, if any, is partial, and not total.

Actual total loss

57.(1) Where the subject matter is destroyed or so damaged as to cease to be a thing of the kind insured, or where the assured is irretrievably deprived thereof, there is any actual total loss.
(2) In case of an actual total loss no notice of abandonment need be given.

Missing ship

58. Where the ship concerned in the adventure is missing, and after the lapse of a reasonable time no news of her has been received, an actual total loss may be presumed.

Effect of transhipment, etc.

59. Where, by a peril insured against, the voyage is interrupted at an intermediate port or place, under such circumstances as, apart from any special stipulation in the contract of affreightment, to justify the master in landing and reshipping the goods or other movables, or in transhipping them, and sending them on to their destination, the liability of the insurer continues, notwithstanding the landing or transhipment.

Constructive total loss defined

60. (1) Subject to any express provision in the policy, there is a constructive total loss where the subject matter insured is reasonably abandoned on account of its actual total loss appearing to be unavoidable, or because it could not be preserved from actual total loss without an expenditure which? would exceed its value when the expenditure had been incurred,
(2) In particular, there is a constructive total loss -
(i) Where the assured is deprived of the possession of his ship or goods by a peril insured against, and (a) it is unlikely that he can recover the ship or goods, as the case may be, or (b) the cost of recovering the ship or goods, as the case may be, would exceed their value when recovered; or
(ii) In the case of damage to a ship, where she is so damaged by a peril insured against that the cost of repairing the damage would exceed the value of the ship when repaired.
In estimating the cost of repair, no deduction is to be made in respect general average contributions to those repairs payable by other interests, but account is to be taken of the expense of future salvage operations and of any future general average contributions to which the ship would be liable if repaired; or
(iii) In the case of damage to goods, where the cost of repairing the damage and forwarding the goods to their destination would exceed their value on arrival.

Effect of constructive total loss

61.Where there is a constructive total loss the assured may either treat the loss as a partial loss, or abandon the subject matter insured to the insurer and treat the loss as if it were an actual total loss.

Notice of abandonment

62. (1) Subject to the provisions of this section, where the assured elects to abandon the subject matter insured to the insurer, he must give notice of abandonment. If he fails to do so the loss can only be treated as a partial loss.
(2) Notice of abandonment may be given in writing, or by word of mouth, or partly in writing and partly be word of mouth, and may be given in any terms which indicate the intention of the assured to abandon his insured interest in the subject matter insured unconditionally to the insurer.
(3) Notice of abandonment must be given with reasonable diligence after the receipt of reliable information of the loss, but where the information is of a doubtful character the assured is entitled to a reasonable time to make inquiry.
(4) Where notice of abandonment is properly given, the rights of the assured are not prejudiced by the fact that the insurer refuses to accept the abandonment.
(5) The acceptance of an abandonment may be either express or implied from the conduct of the insurer. The mere silence of the insurer after notice is not an acceptance.
(6) Where notice of abandonment is accepted the abandonment is irrevocable. The acceptance of the notice conclusively admits liability for the loss and the sufficiency of the notice.
(7) Notice of abandonment is unnecessary where, at the time when the assured receives information of the loss, there would be no possibility of benefit to the insurer if notice were given to him.
(8) Notice of abandonment may be waived by the insurer.
(9) Where an insurer has re-insured his risk, no notice of abandonment need be given by him.

Effect of abandonment

63.(1) Where there is a valid abandonment the insurer is entitled to take over the interest of the assured in whatever may remain of the subject matter insured, and all proprietary rights incidental thereto.
(2) Upon the abandonment of a ship, the insurer thereof is entitled to any freight in course of being earned, and which is earned by her subsequent to the casualty causing the loss, less the expenses of earning it incurred after the casualty; and, where the ship is carrying the owner’s goods, the insurer is entitled to a reasonable remuneration for the carriage of them subsequent to the casualty causing the loss.

损失和委付


负责和不负责的损失

55、(1) 根据本法各项规定,除非保险单另有规定,保险人对承保风险造成的损失负责赔偿;但是,按照以上限制,保险人对不是承保风险造成的损失不负责任。
(2) 特别是, -
(a) 保险人对被保险人的恶意的错误行为造成的损失不负责任;但是,除非保险单另有规定,对有承保危险造成的损失,即使没有船长和船员的错误行为或过失这些损失就不会发生,保险人也需负责。
(b) 除非保险单另有规定,承保船舶和货物的保险人,对延迟造成的损失不与负责,即使该延迟是承保风险赞成造成的。
(c) 非保险单另有规定,对通常磨损、渗漏和破裂,保险标的固有缺陷或特征,或者鼠害或虫害造成的损失,或者不是海上风险造成的机器损坏,保险人不负责赔偿责任。

部分损失和全损

56、(1) 损失可能是全损和部分损失,非本法下文规定为全损的损失,为部分损失。
(2) 全损可能是实际全损或推定全损。
(3) 除非保险单条款规定了不同的意图,全损险除承保实际全损外,还承保推定全损。
(4) 如果被保险人提出全损诉讼请求,而证据证明仅为部分损失,除保险单另有规定外,他可以索赔部分损失。
(5) 如果货物抵达目的地时仍维持其品种。只是由于标志之涂擦或其他原因而无法识别,损失是部分损失而非全损。

实际全损

57、(1) 如果保险标的完全灭失,或受损后不成其为原保险的一种东西,或保险标的的丧失被保险人已无法挽回,则构成实际全损。
(2) 在实际全损的情况下,不比发送委付通知。

船舶失踪

58、如果航海中的船舶失踪,并且在此后一段合理时间内仍无音讯,则可视为实际全损。

转运的作用

59、如果由于承保危险使航程在中途港或地点中断,除了运输合同中的特殊规定外,在船长有权将货物或其他动产卸下和重装或将其转船继续运往目的地的情况下,保险人的责任应连续,尽管发生了卸岸或装运。

推定全损的定义

60、(1) 除保险单另有明文规定外,如果保险标的被合理放弃,由于其全部损失看起来不可避免,或由于为避免实际全损所需的费用会超过其本身价值,就存在推定全损。
(2) 尤其是在以下情况下存在推定全损:
(i) 由于承保危险使被保险人丧失对其船、货的占有,而且(a) 被保险人不可能收回船舶和货物,或者(b)收回船、货的费用将超过其收回后的价值;
(ii) 在船舶受损的情况下,由于承保危险使船舶如此受损,以至于修理船损的费用会超过修理后船舶的价值。
估计修理费用时,其他各方支付共同海损分摊的修理费用不应被扣除,但要将以后的救助费用和船舶如经修缮船方应负的共同海损分摊额计算在内。
(iii) 在货物受损的情况下,如果修理受损货物和续运货物到目的地的费用,会超过货物到达目的地的价值。

推定全损的作用

61.如果发生推定全损,被保险人可以将其视为部分损失,也可以把保险标的委付给保险人,把损失视为实际全损。
委付通知
62、(1) 除本条另有规定外,如果被保险人选择将保险标的委付给保险人,必须发送委付通知。如果被保险人未发送委付通知,损失只能被视为部分损失。
(2)委付通知可以用上面形式或口头形式或部分书面、部分口头形式,被保险人可用任何措词,表示他愿意将保险标的的权益无条件委付给保险人。
(3) 委付通知必须在得到损失的可靠消息后, 合理而谨慎地发送,但如消息存在可疑之处,被保险人有权在合理的时间内对此进行查询。
(4) 适当发出委付通知后,被保险人的权利并不因保险人拒绝接受委付而受到损害。
(5) 保险人可以用明文或行动默示表示接受委付,但在收到委付通知后,只保持沉默并不意味着他已接受委付。
(6) 委付通知书一经接受,委付便不能收回。保险人接受委付通知,则表示最后承认对损失负责和通知有效。
(7) 如果被保险人在得到损失消息时,向保险人发送委付通知,保险人已无获得委付利益的可能,则委付通知就无必要发送。
(8) 保险人可以放弃接受委付通知的权利。
(9) 如保险人将其风险再保险,保险人不必发送委付通知。

委付的作用

63.(1) 如果委付成立,保险人有权接管被保险人对保险标的的一切剩余利益以及与其有关的所有财产利益。
(2) 从委付船舶起,船舶保险人有权得到正在赚取和在引起损失的事故发生后收取的任何运费,但需减去在引起损失发生的事故后为获得该运费所支付的费用;如果船舶装载的是船舶所有人的货物,保险人有权收取在引起损失发生的事故后运输货物的合理报酬。