A critical comparison between English marine insurance warranty and Chinese marine insurance warranty:a case for reform

摘要

As a special contractual term, warranties in marine insurance policy are crucial for risk assessment purpose. Warranty in marine insurance law has survived for centuries. Despite its long period of existence, the current warranty regime has been criticised by a number of scholars and the Law Commission. The main criticism is that it operates unfairly against the assured.Due to the existing problem of the current warranty regime, the main aim of this research is to critically analyse the law of warranty in the English Marine Insurance Act 1906. Where necessary, some law reform proposals will be introduced into the Marine Insurance Act 1906. Moreover, a critical comparison between the law of warranty in the Chinese Maritime Code 1993 and the law of warranty in the Marine Insurance Act 1906 will be made. Due to the simple provisions of Article 235 of the Maritime Code which deals with the issue of warranty, some new law proposals will be introduced into this Article for clarification purpose.In order to achieve these merits, this thesis concentrates on the critical examination as to the law of warranty under the relevant provisions of the Marine Insurance Act 1906 and the Maritime Code 1993. Some law reform proposals made by other scholars will be critically analysed. In particular, the historical development of English and Chinese marine insurance will be provided in Chapter 1 and 3 respectively. The research on the issue of warranty consists of 4 Chapters, namely Chapter 2, Chapter 4, Chapter 5 and Chapter 6. Chapter 2 provides the nature of warranty under section 33 and 34 of the Marine Insurance Act 1906 and some relevant law reform proposals. Chapter 4 consists of the discussion as to the statutory rules of warranty under Article 235 of the Maritime Code. Chapter 5 specifies the statutory rules for the creation of express warranty. Chapter 6 deals with the critical review as to the different types of implied warranty in section 39 and 41 of the Marine Insurance Act 1906, and the author will also introduce some new statutory rules as to the implied warranties to replace the present law. Additionally, as there is no implied warranty under the Maritime Code, in this Chapter, the statutory rules as to implied warranties will be introduced and inserted into the Maritime Code. Finally, Chapter 7 provides the general conclusion of this thesis for the law of warranty in England and China.