"The form of Lloyd's Marine Policy (Code MAR) and/or the Institute of London Underwriters' Companies Marine Policy issued as from1st October 1991 , with the Institute Time Clauses - Hulls (edition of 1st October, 1983, or any subsequent edition thereof) attached."
"Giving the words this meaning, they are plainly not appropriate to the present loss. The conspirators were not inspired by personal malice against Pontoil; they simply wished to steal the cargo, the identity of the owner being immaterial. The same is the case as regards the destruction of the cargo remaining on board when the vessel sank. Perhaps there may, consistently with the decision in The Mandarin Star , be a right to recover where the insured property is damaged by an act of wanton violence, the malice being directed, so to speak, at the goods rather than their owner. But it is unnecessary to decide this here, for the cargo was not lost because the conspirators desired to harm either the goods or their owner. The loss was simply a by-product of an operation carried out for the purposes of gain. On the reasoning of the Court of Appeal this is not within the scope of the peril."
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception.
'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'
"However, instead of sending men to Aegion as soon as possible from Patras (where an agent was specifically maintained, and which was only about half an hour at most from Aegion by road), they were actually sent from Piraeus, some two and a half hours away from Aegion."
"All facts are material which suggest that the business integrity of the proposer for insurance is open to doubt, or that his motive in seeking cover is not merely the prudent one of covering himself against losses which might occur in the ordinary course of events."
"Marine insurers are, for obvious reasons, particularly concerned about obtaining any information which connects the assured with the loss of a vessel in suspicious circumstances such as the scuttling of a vessel. In general terms a prudent insurer would expect to have disclosed to him or her:
"The fact that Mr Ventouris' motor boat had disappeared without trace in such extraordinary, not to say suspicious, circumstances is plainly something that a prudent underwriter would have wanted to take into account when deciding whether to give cover to GRECIA EXPRESS. To have two apparently experienced people on a boat which is never seen again supposedly fall overboard - as a result of one of them falling overboard as he seeks to secure a fender, and the other one trying to get him back aboard without thinking to stop the boat first or turn the boat around - raises the eyebrows (and that is without going into the details of all that is odd about the circumstances of the loss). I think it is just the kind of thing a prudent insurer would want to know about, and it does not in the least matter that it concerns a leisure vessel. It is the doubt it may be seen as casting upon the probity of the owner that would influence me in wanting to know about the circumstances of the loss; and even if one could be persuaded to overcome one's concerns (and, if it were me, I do not think I would have been), it would not alter the fact that one would still want to know."
"if there was any doubt as to whether the St NICHOLAS incident should have been disclosed in and of itself as an isolated incident, once one takes into account any of the other incidents one can see that any particular incident is relevant in considering a series of events which the assured could be said to have been connected with (even though the connection at the time of the casualty is denied) and which should be disclosed. In other words the combination of these incidents makes each of them even more material than they are in isolation.
"Well, there are circumstances in which I can think there is some force to the argument that there is a cumulative effect, that is if you are looking at a particular risk and there are a number of facts, all of which may be interesting but not in themselves material, you can add them all together, as it were, and form an impression overall about the risk, which influences you.
"The contract is often said to be rendered void by concealment or misrepresentation, but it is clear that it is only voidable at the option of the party prejudiced, and that the ordinary rules of law as to voidable contracts apply to insurance."
"This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance of the condition the assured cannot enforce the contract."
"It is a condition of the contract that there is no misrepresentation or concealment either by the assured or by anyone who ought as a matter of business and fair dealing to have stated or disclosed the facts to him or to the underwriter for him."
"The duty of the assured to disclose material facts is a positive, not a negative, duty. Mere silence, and even innocent silence, as to a material fact may entitle the insurer to avoid the contract."
"Ordinarily the failure to disclose a material fact which might influence the mind of a prudent contractor does not give the right to avoid the contract. The principle of caveat emptor applies outside contracts of sale. There are certain contracts expressed by the law to be contracts of the utmost good faith, where material facts must be disclosed; if not, the contract is voidable. Apart from special fiduciary relationships, contracts for partnership and contracts of insurance are the leading instances. In such cases the duty does not arise out of contract; the duty of a person proposing an insurance arises before a contract is made, so of an intending partner."
"Bearing in mind the basis of the rule, however, which is, as Lord Justice Scrutton pointed out, the fact that there is a disparity in negotiating position between the intending assured and insurers, in my judgment the duty to disclose is not based upon an implied term in the contract of insurance at all; it arises out the contract; it applies to all contracts uberrimae fidei and is not limited to insurance contracts; it also applies, for instance, to contracts of partnership, contracts of surety, certain family settlement contracts and other similar types of contractual relationship."
"In considering questions of waiver and affirmation it seems to me essential to bear in mind two things, each of which stems from the need for equality between those bargaining in the marine insurance market, as was stressed by Lord Justice Scrutton in adopting the statements of Mr Justice Park in his Marine Insurances in Greenhill's case (1927) 24 L1 L Rep. 383; [1927] 1 KB at pp 388 and 76-77. The first is that the insured is the one who knows most of what the underwriter needs to know but does not know; the second that, though the underwriter must trust the insured to give it him, he in his turn must be trusted not to abuse the help and protection given him by the duty the law imposes on the insured to disclose and represent truly all that a prudent underwriter needs to know, and so turn the duty into a means of avoiding a contractual liability which he ought in fairness to honour. This the statute recognises by making the duty to observe the utmost good faith mutual in s.17 and by providing the exceptions of circumstances which need not be disclosed that are to be found particularly in s.18(3)(b) and (c).
"In our judgment it is clear that Lord Esher, in using the phrase 'condition precedent,' was using it in the sense of a contingent, rather than a promissory, condition and was rejecting Duer's suggestion that in the case of a contract of insurance uberrimae fidei the parties are to be treated as having promised that full disclosure has been or will be made.
"Even the common law duty of disclosure I find difficult to explain fully on the theory of its resting only on an implied term of the contract. If it did, it would not arise until the contract had been made; and then its sole operation would be to unmake the contract."
"There is one thing, however, which I would like to add. Had it been material I would have been prepared to hold in this case that in any event Mr Skoulding ought to have disclosed the fact of his arrest, charge and committal for trial at the date of renewal, even though in truth he was innocent. What I do not agree with and would not be prepared to accept, although Mr Edmunds in his evidence sought to say to the contrary, is that if, prior to renewal, Mr Skoulding had been acquitted, there would then have been any duty on him to disclose his arrest, committal and acquittal - unless that acquittal was unjustified because he had in fact committed the offence and insurers were prepared so to allege and to prove it. To suggest that a proposer should disclose an acquittal when insurers do not propose to challenge it is in my judgment erroneous and seeks to point a path which, as at present advised, I firmly decline to tread."
"With the greatest respect to Mr Justice May I must decline to follow him in this suggestion. The object of requiring disclosure of circumstances which affect the moral risk is, to borrow Mr Deyes' words, to discover whether the proposer is a person likely to be an additional risk from the point of view of insurance. The most relevant circumstance for disclosure is therefore that he has actually committed an offence of a character which would in fact influence the insurer's judgment. The proposer is bound to disclose the commission of that offence even though he has been acquitted or even if no one other than he has the slightest idea that he committed it: the material circumstance is the commission of the offence. A conviction of a criminal offence is itself, it seems to me, also material (if the commission of the offence is itself material) even though the proposer may protest his innocence or in fact has not committed the offence; for a responsible insurer is himself entitled to assume that prima facie the proposer was rightly convicted and has therefore in fact committed the offence. If therefore an allegation of a relevant criminal offence is made and the allegation is true the proposer must disclose it not because the allegation has been made but because the offence has in fact been committed; it is not then the allegation which must be disclosed but the underlying fact that a crime has been committed. This seems to me to be trite law. It follows, if Mr Wilmers is right, that the only occasion on which the allegation, as an allegation, must be disclosed is when it is not true. This appears to me to be a conclusion so devoid of any merit that I do not consider that a responsible insurer would adopt it and nor do I. In my view the Colne alleagtion, which the defendants made no attempt to suggest had any basis in fact, was not a material fact to be disclosed."
"I prefer the reasoning of Mr Justice May. When accepting a risk underwriters are properly influenced not merely by facts which, with hindsight, can be shown to have actually affected the risk but with facts that raise doubts as to the risk. A number of proposal forms were adduced in evidence to indicate the areas of concern to yacht insurers. Some sought disclosure of charges of dishonesty, others simply of convictions. Mr Price was quite firm that the existence of pending charges for smuggling at the time of placing of the risk was material. I accept this evidence. Subject to the points that remain to be considered, the charges should have been disclosed, whether or not they were well founded."
"The question is, did the plaintiff know any facts injurious to the adventure, which ought, in common honesty, to have been communicated to the underwriters; I mean substantial facts, which were likely to change their opinion as to the magnitude of the risk.
"In the present case, the reports cannot be called loose; the plaintiff knew the frigates had been off the island; a capture was reported to have been made; a binnacle had actually been seen floating with a compass upon it: this latter circumstance was a fact; it was intelligence in its proper mercantile sense."
"Loose rumours, indeed, which have gathered together, no one knows how, need not be communicated and intelligence may be so general, and its application to the subject insured so doubtful and remote, that the assured need not communicate it, though it may possibly turn out to have related to the subject insured."
"Avoidance for non-disclosure is a drastic remedy. It enables the insurer to disclaim liability after, and not before, he has discovered that the risk turns out to be a bad one; it leaves the insured without the protection which he thought he had contracted and paid for. Of course there are occasions where a dishonest insured meets his just deserts if his insurance is avoided; and the insurer is justly relieved of liability. I do not say that non-disclosure operates only in cases of dishonesty. But I do consider that there should be some restraint in the operation of the doctrine. Avoidance for honest non-disclosure should be confined to plain cases."
"Then the question arises as to the concealment by the broker. And I am of the opinion that there was a concealment of what it was material that the underwriter should know, and which he did not know. Upon this point, the argument of the plaintiff was that it was not a concealment, on the ground that the underwriter was bound to take notice of the contents of Lloyd's List, or, in another way of putting it, that the broker was entitled to assume that the underwriter knew it. I do not agree with that argument. It is impossible to say that there is any rule of law, or any principle or authority, which affects the underwriter with knowledge of what is contained in Lloyd's List. No doubt some knowledge may be assumed in the underwriter; what, I will not attempt exactly to define or describe, though I agree with what was thrown out by my Brother Cleasby in the course of the argument, that the matters he must take notice of are matters of general knowledge, not matters relating to any particular ship. But to hold that the underwriter is bound to carry in his head all that is contained in Lloyd's List relating to a ship in which he has no interest, rather than to hold the owner of the ship bound to disclose it, would be to put a difficult and needless burden on the underwriter, while the opposite view puts no difficulty at all in the way of the owner. There was, therefore, a material concealment."
"although I have considered each matter of complaint separately it does not follow that a plea of non-disclosure must fail if no single undisclosed fact can be shown to be such as would influence a prudent underwriter.
"In fact, however, the vessel was cast away by Mr Ventouris for the purpose of making a fraudulent claim on the insurance of the vessel. The Association will rely in this regard on the proceedings which were commenced against the vessel's insurers by Esperance (Action 1995 Folio No. 34), in which the insurers defended the proceedings, inter alia on the grounds that the claim was fraudulent one, and which Esperance discontinued in the course of the trial."
"you took the boat out of the marina and you hung around off Cape Sounion until it was dark. You and Mr Architectonides then joined up with Mr Psarras, who was waiting off Yaros, and you transferred on to his boat and Coha II was taken about out of Greek waters under cover of darkness.
"Q. What truly happened, Mr Ventouris - I had better just put this to you - is that you and Mr Architectonides took the vessel out of Zea Marina, and waited until it was dark, probably somewhere around Cape Sounion, and joined up with Mr Psarras.
"Having left Zea Marina, GCV and AA waited at Cape Sounion (where the filters are alleged to have been changed) until they had the cover of darkness. They then met up with Mr Psarras, who was waiting for them off Yiaros, and transferred to his boat whilst Coha II was taken away."
"Whilst there is a reasonable margin above the actual value of a vessel which could lead to an insurer accepting a vessel insured without being unduly concerned, I would expect to be provided with a bona fide market value of the vessel and to be informed if there is a known disparity between the bona fide market value and the insured value. In my opinion insurers will inevitably differ in their assessment of what is a reasonable margin and if pressed in my view a reasonable margin would be one between 25-50% of the bona fide market value of the vessel. In these circumstances I would attribute such a differential down to the fact that the value of vessels can in some circumstances rise or fall over time."
"Q. And the evidence of the underwriters in this case is that: had they been told about an overvaluation, it is not the case that they would simply have refused the risk, they would have asked for an explanation; and I understand that is your approach too.
"It is the generally accepted practice of the insurance market with which the Association is in competition that an owner is entitled to put what value he considers appropriate upon his capital asset, namely his ship, and to decide what the monetary loss will be to him should she be lost. He has to accept that the premium will be enhanced by a higher value and this does, of course, enter into his calculation of the values for which he requires insurance.
"It is the duty of the assured and his agents, in all cases, to take such measures as may be reasonable for the purpose of averting or minimising a loss."
"In the event of any occurrence which may give rise to a claim by an Owner upon the Association, it shall be the duty of the Owner and his agents to take and to continue to take all such steps as may be reasonable for the purpose of averting or minimising any loss, damage, liability, cost or expense in respect whereof he may be insured by the Association. In the event that the Owner commits any breach of his obligation, the Directors may reject any claim by the Owner arising out of the occurrence or reduce the sum payable by the Association in respect thereof by such amount as they may determine."
"He did not in the course of his judgment analyse what the subsection meant by the word "duty". On the construction of this provision which I consider to be correct the assured is certainly under a duty in the sense that in cases where an omission to act as prudent uninsured might be the proximate cause of an insured loss, he fails to act at his peril. However, the consequence of his omission to act is that no insured loss occurs. Ex hypothesi no such loss can occur because the proximate cause of any such loss would not be an insured peril but rather the uninsured peril of the assured's or his agent's omission to act. In such a case the insurers would have a defence to the claim, but they would have no set-off or counterclaim unless they had already paid on the assured's claim and were seeking to recover what they had paid. I am therefore unable to follow that part of Mr Justice Mocatta's judgment in which he suggested that a set-off or counterclaim could be brought by insurers for breach of the s.78(4) duty."
"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;"
"On the facts of the present case it is unnecessary to determine how to resolve the apparent conflict between s.78(4) and s.55(2)(a). I observe only that the latter section expressly operates on the basis that the misconduct or negligence of the master is not the proximate cause of the loss. Accordingly, in my view, in cases where such misconduct or negligence of the master or crew is the proximate cause, there may well be a breach of s.78(4) where the misconduct or negligence consists of failure to act as a prudent uninsured in the face of an insured peril so as to avert or minimise what would otherwise be an insured loss, thus providing insurers with a defence to the claim, s.55(2)(A) notwithstanding."
"I think I would be able to assess whether it was going to capsize within the next five or ten minutes. That is not the sort of reaction you normally get from all seamen, particularly given the reputation of RoRo ships, with their inbuilt vices and the propensity to roll over.
"An owner shall (b) whenever so requested by the Managers, promptly produce to the Association and/or allow the Association or its agents to inspect, copy or photograph, all relevant documents of whatsoever nature in his or his agents' possession or power; and (c) permit the Association or its agents to interview any servant, agent or other person who may have been employed by the Owner at the material time or at any time thereafter, or whom the Association may consider likely to have any direct or indirect knowledge of such event or matter, or who may have been under a duty at any time to report to the Owner in connection therewith."
"The insurer is under no obligation to elect to treat the contract as at an end within any particular length of time and accordingly mere delay, without more, does not deprive him of his right to do so. However, if he does some act in affirmation of the contract, that is to say, some act which is only consistent with an intention not to treat the contract as at an end, he will thereafter have lost his right to do so provided that he had actual knowledge of the facts which gave rise to the right. (See, for example, The Kanchenjunga[1990] 1 Lloyd's Rep 391 ). Invoking or asserting a contractual right is a clear example of electing not to treat the contact as at an end (see per Atkin LJ. 6 Lloyd's Rep p250). Where the insurer simply delays in exercising his right after he has the relevant knowledge, he will lose his right if the delay is such as to evidence that the insurer had in truth decided to accept liability or has prejudiced the rights of the assured or caused third party rights to intervene. ( Allen v. Robles and Another[1969] 2 All ER 154 ;[1969] 1 WLR 1193 ; Liberian Insurance Agency Inc. v. Mosse[1977] 2 Lloyd's Rep 560 )."
"As a result of preliminary investigations into the casualty the MV "GRECIA EXPRESS" on5 March 1994 , circumstances have come to our attention which give cause to question whether proper disclosure was made to Hellenic Mutual War Risks Association (Bermuda) Limited prior to the renewal of1 January 1994 of cover in respect of the above mentioned ships; or prior to the commencement of cover under any earlier Policy Year. If these concerns are borne out we believe that Hellenic Mutual War Risks Association (Bermuda) Limited will be entitled to avoid all policies ab initio. However, the Hellenic Mutual War Risks Association (Bermuda) Limited has no wish to take any precipitous action and at the present moment it merely wishes to reserve its rights in relation to all possible non-disclosure or possible misrepresentation whilst continuing its investigations into both the casualty which occurred on5 March 1994 , and its concern in relation to possible non-disclosures and possible misrepresentations."