On the Rectification of Disclosure Obligations in the Marine Insurance
|School||Dalian Maritime University|
|Keywords||law of Marine Insurance Marine Insurance Contract Rule of Disclosure Obligation Information Disclosure Theory of Rectification|
It has been hundreds of years since the operation of traditional duty of disclosure in marine insurance, and its distinguishing feature makes it rather a rarity in the field of insurance law. In the modern marine business, information disclosure between the assured and the insurer has changed radically, which is illustrated in the enormous maritime disputes with totally different rulings and arbitration awards emerged from the judicial practice. That is to say, firmly entrenched in the existing duty of disclosure is only increasingly out of step. Therefore, this paper, starting with the theory of rectification, analyzes various problems in traditional duty of disclosure, and based on this, puts forward some specific legislative suggestions in order to build a new regime of duty of disclosure.This paper consists of three parts, i.e., the introduction, the body and the conclusion. Specific details will be given in the main body which is divided into six chapters:The first chapter analyses the legal nature of duty of disclosure in marine insurance, and corrects it as an obligation within the limit of fault liability. The second chapter focuses on the information asymmetry between the two parities of the marine insurance contract when performing and observing the duty of disclosure, and derives the internal relation between the duty of disclosure and asymmetric information from the analysis of the two, and meanwhile, offers the ways for perfection. The third chapter discusses the advantages and disadvantages of the existing pattern of duty of disclosure in marine insurance. By comparing such unlimited informative obligation and limited informative obligation two patterns, this paper suggests that unlimited informative obligation only be applied to the Marine Cargo Insurance, whereas other kinds of marine insurance adopt limited informative obligation. The fourth chapter analyzes and corrects the duty of disclosure under the paradigm of the economic analysis of law, and in light of the conflicts of interest between the two parities, reevaluates the transaction cost and the benefit of law accompanied by performing and observing duty of disclosure. The fifth chapter emphatically reveals Rotterdam Rules, a new maritime convention, many of its brand-new rules that has influences the evolution of duty of disclosure in marine insurance, may slow the process of unlimited informative obligation shifting to limited informative obligation. The sixth chapter goes into the frame work of new order of duty of disclosure, and concludes with some specific legislative conceptions.By using comparison method, literature method and case analysis etc., this paper analyzes the existing duty of disclosure in marine insurance from a corrective perspective in the hope of breaking the bonds and giving this traditional system a new life, as well as testing the suggested solutions in the new one so that a sound and prosperous marine business can be achieved.