선박보험상 추정전손 성립의 산정기준에 관한 고찰 ― 영국대법원 판결: The Swedish Club v Connect Shipping (MV Renos) [2019] UKSC 29 중심으로 ―

Abstract

The expression “constructive total loss” is never used except in reference to marine insurance. The assured could be paid claims on an actual total loss basis without proving the loss nor demonstrating claim amount. In the past war times, ships as a subject-matter-insured under a hull and machinery insurance policies were captured, seizured or missed by the enemy authorities. That sort of physical impossibility made the assured to be entitled to the subject of constructive total loss. However, the assured and insurers give consideration to economical efficiency on the claims payment in a recent days. If the costs occurred in case of claims may exceed the agreed value in the policy then the claims could be counted as a constructive total loss basis. It takes into account business impossibility on the economical aspects. In this case, it could be an argument which cost could be regarded as the cost of repairs which is computed as a constructive total loss. In estimating the cost of repairs, account is to be taken both of the expense of future salvage operation and of any future general average contribution, according to the Marine Insurance Act(MIA) 1906. And it is stipulated in the statute that where the assured elects to abandon the ship or cargo to the insurer the assured must give notice of abandonment(NOA) with reasonable diligence. If the assured fail to do so, the loss can be treated as a partial loss. The necessity for a notice of abandonment in the case of a constructive total loss is regarded as a rule of practice founded upon convenience. Last June, UK Supreme Court gave a decision on the issues of pre-NOA costs and SCOPIC remuneration which is agreed to pay the additional cost occurred to prevent environmental pollution under the salvage contract. As both MIA and the authority does not say much on the meausre of indemnity leading to a constructive total loss, The Supreme Court have reviewed the issues based upon some basic principles of insurance law. The Supreme Court pass judgment that the reference to “the cost of repairing the damage” in MIA was in fact reference to the entire damage arising from the casualty the moment it happened. It cannot make any difference when the cost was incurred, pre or post notice of abandonment. This principle might not be affected by the legal requirement for a notice of abandonment. However, different from the decisions of previous courts, the Supreme Court held that SCOPIC charges cannot be considered as a part of “the cost of repairing the damage”. Because the objective purpose of SCOPIC charges was different. It was not to enable the ship to be repaired, but to protect an entirely distinct interest of the assured, namely his potential liability for environmental pollution. That purpose has nothing to do with the subject-matter insured, namely the hull. It was no part of the measure of the damage to the ship, and had nothing to do with the possibility of repairing her. Practically, there have been wide inclusion of pre-NOA costs to the cost of repairing damage so far. Issues on the calculation of constructive total loss could be clarified by this judgment, specifically on the pre-NOA and SCOPIC costs. Considering SCOPIC remuneration is not a named peril on the hull insurance clause, the Supreme court’s decision on the issue would be aggreable by intuition. Under the recent hull insurance clauses of 1995 and 2003, the underwriters shall not liable special compensation payable to a salvor under Article 14 of the International Convention or Salvage 1989. In Korean Commercial Code, it says the cause of abandonment in the clause 710 with the same contents in MIA section 60. It continues procedure and effect of abandonment from clause 711 and 718. Korean Supreme Court has several cases on constructive total loss in hull insurance with broad inclision of cost as the repair cost. But the Korean Supreme Court held the case by reference to UK MIA because hull insurance policy includes English governing law rather than KCC. UK Supreme court’s decision could have the same effect on Korean marine industry in terms of on what costs should be included in constructive total loss calculation.