This assignment is about marine insurance again. It was about the perils of the seas. I still haven't figured out what did Gauci want us to write about it as the question given was, well confusing, maybe just for me.
Coursework Number 2
Critically assess the relevance of The Popi M and The Marel cases in relation to the risk of 'perils of the seas'.
It seems clearer for me now after I actually wrote down the whole question. What I saw at first was the Popi M and the Marel, and the perils of the seas. It seems I missed out the 'risk' word. I will figure out the significance about that word later.
Anyway, I asked myself after reading and understanding completely the two cases, what do the question really asking, or what do our beloved lecturer expect us to write. (Gauci is my favorite lecturer.)
Does he want us to write about how should we proof a perils of the seas? Does he want the issues involved the perils of the seas? How should the court look at the cases by balance of probabilities? Or the definition of the perils of the seas?
Here I listed down some facts that I found from the cases.
- Popi and Marel, cases about both vessel sunk in extremely improbable way.
- Shipowners claimed it as part of the perils of the seas.
- Underwriters claimed it as unseaworthiness, which is virtually impossible.
- Both cases were won by the underwriters, but it did not mean that the defences used by underwriters were correct. It just simply meant that the shipowners failed to discharge themselves from the burden of proof.
- Both cases are full with rebuttable presumptions, which was assumptions made by the courts unless another party contest it.
- However, the critical part was back to how did the aperture on the ship hull happen. Both of the ships were found in a seaworthy condition on their respective voyage.
Ok now back from the past. It is like, I accuse you for stealing something, and you ask me to prove it that you steal it. If I cannot proof that you steal, you don't have to defence yourself at all.
Same for these cases, the shipowners said their ship were sunk due to the perils of the seas. And so the underwriters will have the right to ask them to show evidences of their ships were sunk by perils of the seas, not just by telling them about it and wanted to claim insurance.
In Popi M, the judge of commercial court actually did some mistakes in judging the case. It actually brought me some insights that the court, instead of choosing which party should be the right one, should actually be deciding on how should they judge the cases.
The commercial court was compelled to decide on which explanation was the correct one. Was it that shipowner said it was due to hitting something unknown? Probably a submarine? Or the underwriter who said the ship was unseaworthiness?
And the Sherlock Holmes philosophy came in, saying that when we take out those unlikely one, we will find the right one, apart for the right one being improbable.
The court decided to go for shipowner's idea, which said the ship was collided with a submarine, which in my opinion was extremely impossible and improbable. And the House of Lord changed the decision. But they were not saying that the underwriter's idea was then right one.
The Sherlock Holmes' idea was not a wrong one. It could be correct if we apply it onto something reasonable and with evidences. It just could not be applied into this case as we did not know anything about how the ship actually had an aperture on its hull.
So the case were back to square one. The underwriter, once received the claims from the owner, will say: show me the proof that the whole incident was fortuitous and accidentally happened.
If the owner failed to prove it, who will bother about his claim?
PS: I guess my dad will be happy for my progression in this case.
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