해상보험계약상 해적사건의 전손취급에 관한 연구 - Bunga Melati Dua호 사건의 항소법원판결을 중심으로 -

Abstract

The purpose of this study aims to analyse the treatment of actual total loss in the piracy case with the Bunga Melati Dua case. The proliferation of piracy in the Gulf of Aden and around the Indian Ocean has caused the shipping and insurance industry to consider issues which have not arisen for many years. It may be that pirates may be properly considered to be the “enemies of mankind”(as stated in Dean v. Hornby) and, as acknowledged by the expert evidence given in this case, that paying ransoms to them encourages further hostage taking. However, the payment of a ransom to secure the safety and release of the crew and the preservation of property is not morally objectionable. In the case of Bunga Melati Duo, the High Court decided that the hijacking by Somali pirates of a vessel, its crew and its cargo for ransom did not result in the cargo becoming an actual total loss in terms of s.57(1)of the MIA nor a constructive total loss under s.60(1) of the MIA. The Court further held that the payment of a ransom to the pirates was not contrary to public policy-a question which had been the subject of much discussion within the London Market. Following an appeal by the appellants, the Court of Appeal published its judgement in the matter on 26 January 2011. The Court of Appeal noted that pirates are not classified as terrorists and reiterated that the payment of ransom is a sue and labour under a marine insurance policy. These are both useful comments by the Court which go to clarify the current understanding. The questions on appeal by the appellants were：1) Was the cargo an actual total loss?, 2) Does the hijacking of the vessel constitute theft?, 3) Is payment of ransom in the public interest or is it contrary to universal principles of morality?The appellants did not appeal the High Court’s decision that the vessel was not a constructive total loss or any issues of fact.