海上保险讲义-part3-.ppt

Presumption of loss by an unascertainable peril of the sea When a claimant is unable to present direct evidence showing the precise nature or event of the cause of a loss, such as in the case of a missing ship or when the loss is inexplicable, he may seek the assistance of the court with the request that a presumption of a loss by an unascertainable peril of the seas be drawn in his favour. This plea, if granted, will allow the claimant to present his evidence by way of inference to signify the cause or reason for that loss. But, before a presumption of loss by an unascertainable peril of the sea is allowed, the court has to be satisfied that certain condition are fulfilled, namely, that the ship was seaworthy when she set sail, and that an uninsured peril did not cause the loss. The purpose of this is to eliminate from the inquiry causes of loss, including unseaworthiness, that are not covered by the policy. It will facilitate the court to make the deduction that, as causes of loss which are not insured have been discounted, the loss must have been caused by an unascertainable peril of the seas. Susan Hodges Cases and materials on marine insurance law Chapter 11 … The plaintiffs were not privy to the defects in design (see s 39(5) of the 1906 Act) nor to the fact that, at the material time, the cruiser was not seaworthy. They had not impliedly warranted that it was (see the same such section of the 1906) nor had they failed to take reasonable steps to maintain and keep the cruiser in a proper state of seaworthiness as they were required to do under the policy. The loss was not caused by wear or tear so as to cause ‘debility’. Since the defendants did not exclude unseaworthiness or design defects which contributed to the loss without being the sole cause (as they could have done) the plaintiffs’ claim falls within the policy provided that what happened in the sea conditions was a proximate cause of the loss. In Willmott v General Accident Fire and Life Assurance