Although air transport is faster, carriage of goods by sea is still the major means of transport in international trade. However, there are many potential risks so shipowners and shippers want to cover their risks through marine insurances.
Protectio...
Although air transport is faster, carriage of goods by sea is still the major means of transport in international trade. However, there are many potential risks so shipowners and shippers want to cover their risks through marine insurances.
Protection and Indemnity (P&I) insurance covers a shipowner's third party liabilities which arise in connection with the operation of the ships. This insurance is one of the major marine insurances along with Hull & Machinery insurance and Cargo insurance. But P&I insurance has different characteristics from the others. Particularly, while both Hull & Machinery insurance and Cargo insurance are normally commercial insurances, P&I insurance is a mutual insurance. Therefore, a P&I club, generally an insurer of P&I insurance, is organized by shipowners and operates on a non-profit basis.
In Korea, there was no national P&I club until 2000. Therefore, most of the Korean shipowners' liability risks had been insured by foreign P&I clubs, especially British P&I clubs. At that time, many Korean legal scholars had argued for the necessity of the establishment of a Korean P&I club and one was finally established in January 2000. Their studies, however, had not sufficiently focused on the legal problems of P&I insurance, so more study about these legal problems is required at this time.
The purpose of this study is to introduce P&I insurance and to provide possible solutions to its legal problems. It is composed of six chapters.
In the first chapter, I deal with the purpose and scope of the dissertation.
In the second chapter, I introduce the historical background of P&I insurance and discuss the major legal problems which have historically occurred. Since P&I insurance was created and developed in the English legal system, it is difficult to understand for many people who study law in a Civil Law system, and therefore are not familiar with a Common Law system. Accordingly, studying the historical background of P&I insurance will make it easier to understand the legal problems of such insurance in Korea.
In the third chapter, I defines P&I insurance in a Civil Law system. In addition, I deal with the distinctive nature of the P&I insurance contract. In England, it is the majority opinion that P&I insurance is an indemnity insurance, not a liability insurance. In the Korean legal system, however, it is practically impossible to distinguish indemnity insurance from liability insurance because Korean laws generally admit to third party claims against liability insurers. Thus, in a Civil Law system like Korea, P&I insurance should be regarded as a liability insurance, not as an indemnity insurance.
In the fourth chapter, I classify the risks covered by P&I insurance and analyze each risk. P&I insurance covers mixed risks which developed in an unplanned, empirical and piecemeal way, so it has been described as a "somewhat miscellaneous group of left overs." In this chapter, I research many rules of P&I clubs and try to classify the risks covered by P&I insurance. An analysis on each risk in connection with the Korean law and International conventions is also provided.
In the fifth chapter, I deal with the right of third party direct claims against a P&I club. P&I insurance often has a "pay to be paid" rule in its contract rules. According to this rule, a shipowner must pay his liabilities to victims in advance and then be indemnified for his losses by P&I insurance. As a result, if a third party directly makes a claim against a P&I club, the P&I club would make a plea based on this "pay to be paid" rule. By sticking to the "pay to be paid" rule, however, if someone is injured by an insolvent shipowner, the victim would receive nothing from P&I insurance. It can cause a harsh problem in Korea because Article 724 (2) of the Korean Commercial Law generally admits third party claims against liability insurers. Hence, in order to solve this problem, the "pay to be paid" rule should be only applied to the relationship between a P&I club and a shipowner, not between a P&I club and a third party because Article 724 (2) of the Korean Commercial Law is a compulsory law. By this interpretation, a third party could directly make claims against a P&I club under the Korean law even though there is a "pay to be paid" rule in the rules of the P&I club.
In the sixth chapter, I summarize the results of the above studies as a conclusion of this dissertation.