the perils of sea or not, but he can never make sure whether the assured will make the ship take off in a unseaworthy state. The Learned Author Sir Mustill terms this as an attractive argument and the one that conforms to the historically developed doctrine of implied seaworthiness. However He criticises this by saying that the assured is denied cover in suffering a loss due to the peril of the sea by the mere reason that the ship was unseaworthy at the commencement of the voyage, though the unseaworthiness at the commencement is not causative of the loss. I find my self totally in agreement with Sir Mustill and would endeavour to say that if the loss is due to an insured peril than the underwriters must be held liable to pay. The Marine Industry is very conservative in its approach to the Law of Marine Insurance hence change should come from the Parliament, thus I boldly comment here that it is high time that the subsection be amended and the principle of causation be included where if the ship suffers from an insured peril and that is not caused due to the unseaworthiness at the commencement the policy should not be allowed to be void. 4 d) Portworthiness The term Portworthiness is the invention of the Learned Author Hodges (1999, pp 302-303) which basically means that the vessel should be able to withstand the strains of the port. This is the logical meaning that flows from s 39 (2) and the section only bites impliedly though, if the policy attaches “at and from” to the vessel. The common law interpretation is based on the simple literal interpretation of s 39 (3) as Reed (AE) & Co v Page, Son & East Ltd (1927)Scrutton evident in the case of LJ held that, “It is enough if, before she sails, she has completed her equipment and repair. But she must be fit as a ship for the ordinary perils of lying afloat in harbour, waiting to sail. She must, in my view, be fit as a ship, as distinguished from carrying a warehouse, at each stage of her contract adventure, which may... commence before loading. ”
the perils of sea or not, but he can never make sure whether the assured will make the ship take off in a unseaworthy state. The Learned Author Sir Mustill terms this as an attractive argument and the one that conforms to the historically developed doctrine of implied seaworthiness. However He criticises this by saying that the assured is denied cover in suffering a loss due to the peril of the sea by the mere reason that the ship was unseaworthy at the commencement of the voyage, though the unseaworthiness at the commencement is not causative of the loss. I find my self totally in agreement with Sir Mustill and would endeavour to say that if the loss is due to an insured peril than the underwriters must be held liable to pay. The Marine Industry is very conservative in its approach to the Law of Marine Insurance hence change should come from the Parliament, thus I boldly comment here that it is high time that the subsection be amended and the principle of causation be included where if the ship suffers from an insured peril and that is not caused due to the unseaworthiness at the commencement the policy should not be allowed to be void. 4 d) Portworthiness The term Portworthiness is the invention of the Learned Author Hodges (1999, pp 302-303) which basically means that the vessel should be able to withstand the strains of the port. This is the logical meaning that flows from s 39 (2) and the section only bites impliedly though, if the policy attaches “at and from” to the vessel. The common law interpretation is based on the simple literal interpretation of s 39 (3) as evident in the case of Reed (AE) & Co v Page, Son & East Ltd (1927)Scrutton LJ held that, “It is enough if, before she sails, she has completed her equipment and repair. But she must be fit as a ship for the ordinary perils of lying afloat in harbour, waiting to sail. She must, in my view, be fit as a ship, as distinguished from carrying a warehouse, at each stage of her contract adventure, which may... commence before loading. ”
Portfolio-24076-Final%20Marine%20Insurance%20Dissertation.docx