Misrepresentation In Marine Insurance

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resources spent for this purpose will of course have to be reimbursed through the premium. Also, if the insurer is uncertain whether he has the full information, he may ask for a higher premium for safety reasons. The duty of disclosure is therefore a tool to obtain a more correct premium, and — contrary to what the assured may believe - this premium may also be lower than if there was no such duty.
Section 20 provides that the contract of marine insurance will be voidable for misrepresentation. Although the doctrine of misrepresentation applies to contract law in general, the provisions of section 20 will prevail in the context of marine insurance. The fundamental considerations underlying the rules of misrepresentation in marine insurance,
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Traditionally, the remedy for misrepresentation has always been rescission, granted by the courts of equity in line with normal equitable principles, this remedy is discretionary only (although it is almost always granted in insurance law). The common law gave no remedy for innocent misrepresentation, although it always recognized fraud. The remedy for non-disclosure is common laws remedy of avoidance of the contract ab initio. And it is not discretionary, but the injured party's right. If misrepresentation and non¬disclosure are now, to all intents and purposes, the same creature and an equitable creature, this automatic right to avoid the contract must become question- able. Will the judiciary be able to deny avoidance, even if materiality and inducement are proved, and insist instead that the innocent party settles for damages?
2.6 The test of materiality
The concept of materiality is necessary in order to delimit the obligation to disclose. It has been suggested that such a limitation is not a "logically necessary requirement" to the duty of non- misrepresentation. Materiality is required in the Marine Insurance act, 1906 (UK) both in the context of disclosure and misrepresentation.
Section 18(2) suggests that the test of materiality is objective. Section 18(2)
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18 is capable of working such great hardship on the assured... (T)he fairness of the English rule is not at once obvious and hardly seems to reflect the duty of utmost good faith under s. 17 which, be it noted, is owed both ways. Why, if the insurer would have accepted the risk in any event, albeit at an increased premium, should he be able to avoid the claim altogether? Since the English law is so favourable to the underwriter in this respect, the least that should normally be expected of the underwriter is to show that a prudent insurer would have charged an increased

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