From the moment a contract of marine insurance for a voyage is concluded, it is expected that ‘the voyage insured shall be very shortly commenced, or is, at all events, in the near contemplation of the parties.
It is understood by the insurer that the vessel would sail within a reasonable time from the date of the conclusion of the contract. However, the commencement of an insured voyage, whether under a policy ‘from’ or ‘at and from’ a particular place, could well be affected by delay. Any excessive delay would naturally vary the risk upon which the insurer has agreed to undertake.
It is therefore imposed on the assured the duty to commence the adventure within a reasonable period of time. It applies to all voyage polices regardless of the subject-matter insured. Some policies may have the wording “Where the subject-matter is insured by a voyage policy “at and from” or “from” a particular place, it is not necessary that the ship should be at that place when the contract is concluded, but there is an implied condition that the adventure shall be commenced within a reasonable time, and that if the adventure be not so commenced the insurer may avoid the contract”.
Delay in the attachment of risk and/or in the commencement of voyage
The commencement of the insured voyage in a policy ‘from’ a particular place could be delayed in either one or both of the following ways. The delay could arise in the course of the ship’s (preliminary) voyage to the particular place and/or in the commencement of her insured voyage ‘from’ that particular place. In either case, the result is the same: there is delay hindering the commencement of the insured voyage ‘from’ the particular place, resulting in a delay in the attachment of the risk.
In an ‘at and from’ policy, a ship could encounter delay either during the course of the preliminary voyage to the particular place, and/or delay in the commencement of the insured voyage ‘from’ the particular place. In other words, a delay could occur either before and/or after the attachment of the risk.
This therefore implies that in the one case, there is a delay in the attachment of the risk, and in the other, a delay in the commencement of the insured voyage under a policy the risk of which had already attached. In either event, it would result in a delay in the commencement of the insured voyage.
The defence of lawful excuse
Is the defence of lawful excuse available for the assured? Can this be the case whether for reasons beyond the control of the assured to commence the insured voyage such as perils, the vessel cannot take off within reasonable time?
The main problem in this area of the law which requires consideration is whether the defence of lawful excuse is available to the assured.
Naturally, if the delay or the likelihood of delay is known to the insurer before the contract is concluded, then the implied condition is negatived.
Legal effect of breach
The Common law had at one time suggested that a breach of the implied condition would prevent the attachment of the risk under the policy. Words to the effect that the insurer was ‘discharged from liability’ were also used.
Add comment