Dissertation Proposal Sample 本英语论文由英语论文网www.51lunwen.org提供
Topic:
The Marine Insurance of Small Craft25: Is the Insurance Industry, Parliament and Europe
Continuing to Neglect Due Diligence and, if so, Why?
Introduction
The traditional free market approach to contract law has been subject to much European and domestic
legislation and regulation in the late 20th century. However, insurance contracts have remained largely
unaffected by such legislation and regulation, at the insistence of the insurance industry, justified by a
policy of self-regulation. This self-regulation may be likened to the approach of the banking industry
with regard to anti-money laundering controls, and the maintenance of asset/capital ratios to protect
investors from insolvent institutions, in the face of the growth of regulation in the late 20th century. The
self-regulatory procedures of the banking industry anticipated and were eventually crystallised into
statutory controls26 and have lately been extended to cover the insurance industry but only with regard
to anti-money laundering procedures and safeguards and asset/risk ratio maintenance (solvency)27.本英语论文由英语论文网www.51lunwen.org提供
However, any attempt to highlight the apparent inequality and vulnerability of the consumer with
regard to insurance contract terms and statutorily protect the consumer, such as the Unfair Contract
Terms Act 1977,28 or harmonise insurance laws, regulations or administrative provisions, as in the
abandoned European Commission Directive of 1979, has met with a concerted effort by the insurance
industry to maintain its free market approach justified by a series of self-regulatory measures, such as
The Statement of General Insurance Practice29 and The Statement of Long-Term Insurance Practice.30
A further problem with insurance contracts is the importance they place on warranties. A breach of a
warranty can allow the insurer to repudiate the contract whereas in contract law generally a breach of
warranty, if considered serious enough, will only result in the award of damages whilst a breach of
condition will allow for repudiation. It is submitted that this seemingly reverse emphasis would make
the application of standard contract legislation and regulation, even if considered by the legislature,
virtually ineffective in policing the fairness of marine consumer insurance contracts.
The small craft insured is a unique category of consumer as he is insuring in a market traditionally
considered, by the insurance industry and, apparently, Parliament and the European Union, to operate
fairly without the need for external regulation. Marine insurance is traditionally considered to concern
corporations rather than small consumers, this is used to justify this laissez faire attitude. Thus it is
assumed the parties have equality of arms, that the parties supposedly negotiate the terms of the
contracts from positions of comparative equality e.g. insurance companies with large fleet operators,
ship owners, transport companies etc.
This is exemplified by the fact that marine insurance law is primarily drawn from the Marine Insurance
Act 1906 (MIA) 31, which notably does not consider the individual small craft owner and was drafted
by Sir Mackensie Chalmers, when, it is submitted, although England was considered to ‘rule the
waves’ this was only thought to be important for commercial considerations not the small craft owner.
History of Regulation
The Statement of General Insurance Practice and The Statement of Long-Term Insurance Practice,
were introduced quid pro quo for the exclusion of insurance from the ambit of the Unfair Contract
Terms Act 1977. Both were drafted by the British Insurance Association and Lloyds, and were entirely
25 Although the term small craft has no official origin it is used, as Fletcher-Tomenius did before (see
note 11) to refer to ships eligible to register on the small ships register (see Maritime and Coatguard
(MCA) website at note 57) i.e. non-fishing or submersible vessels which are under 24 meters in
