DOI: 10.14457/tu.the.2015.437
title: Legal problems on duty of disclosure under marine insurance contract

description: ABSTRACTThe duty of disclosure is important duty under utmost good faith doctrine that assists the party to marine insurance contracts have an equal status prior execution of the contract. Both assured and insurer are required to perform its duty by disclosing material circumstances to each other as equitable duty. Once this duty is applicable in practice, the assured’s duty is too onerous on the ground that the insurer has more bargaining power than the assured. The scope of this duty is extended for the post contractual period. Avoidance of marine insurance contract is considered to be unfair remedy. These problems on this duty arise from the unfair provisions that were stated in the marine insurance law. It therefore reflects to the duties’ application and the Court’s interpretation respectively. This thesis aims to study a correlation between a nature of marine insurance contracts and the duty of disclosure. The party under marine insurance contracts shall entitle to obtain material circumstances from another party for their own of risk assessment. It also studies a development of marine insurance law in several jurisdictions evidencing to attempt closing the loophole of the duty of disclosure provisions. The provisions of marine insurance under the United Kingdom, Norway and the People’s Republic of China have been slightly difference in particular law development. For the United Kingdom, the duty of fair presentation has been introduced under the Insurance Act 2015 in lieu of the duty of disclosure. The concept of new duty is generally similar to the duty of disclosure but the new duty contains clearer provisions for resolving problems i.e. insurer’s notice to make further enquiries and imposing several degrees of remedy. For Norway, the duty of disclosure is existed under the Nordic Marine Insurance Plan of 2013, Version 2016, as agreed document governing a contract of marine insurance. The person effecting the insurance obliges to perform this duty. The insurer obliges to give notice once the incorrect or incomplete of information are provided by the assured. The remedies are also provided based on several scenarios which impose to both assured and insurer. For the People’s Republic of China, the provisions of this duty are out of dated. This duty imposes to the assured while there is silence on the insurer’s duty. The remedies impose to the assured based on the act that is either intention or non-intention. For Thailand, Section 868 under the Civil and Commercial Code is insufficient to consider the duty of disclosure under the marine insurance contracts. There were two ways for the resolution on this problem. One, the application of the Marine Insurance Act 1906. It leads to significant question stating that whether the marine insurance law could be applied via a gap-filling provision under Section 4 of the Civil and Commercial Code. Another, the application of insurance law under the Civil and Commercial Code. It also leads to a problem on the ground that characteristics between insurance against loss and marine insurance are difference. In order to resolve these problems and build a trust to players, the marine insurance law provision regarding to the duty of disclosure should be enacted with the provisions of equitable duty between the assured and insurer, limitation of the duty’s scope at the pre-contractual period and imposing a fair remedy.