Express Warranties in Marine Insurance: A Comparative Analysis of English and Norwegian Law

Abstract: In the context of English marine insurance law, a warranty is a contractual obligation of the assured to perform a certain duty or to ascertain or to negate a certain state of facts. The Marine Insurance Act of 1906 (MIA) further establishes that a warranty must be exactly complied with and does not need to be material to the risk. Where the assured fails to fulfil the warranty, the insurer will be discharged from any liability under the contract from the date of the breach. The implications of this system can be described as draconian to the assured, as he has no available defences and cannot have the claim for breach dismissed on the grounds that he has subsequently complied with the warranty. Two types of warranties can be said to exist: Express and implied. The second type is part of every contract of marine insurance as per MIA sect. 39-41, obligating, among other things, the assured to provide a seaworthy vessel. Express warranties, by contrast, are subject to the freedom of contract and can hence lay any obligation upon the assured, regardless of how remote to the risk it may be. The second type is therefore of particular interest. The main purpose of this thesis is to investigate the law relating to express warranties and to determine the reasons for why it was created and why it has been retained. In order to achieve this purpose the author will use legal dogmatic method to analyse statutes and case law in order to determine; 1) the historical reasons behind the regime of warranties, 2) how the courts apply it in the modern day, 3) discuss and conclude whether it achieves whatever purpose it is determined to have. To further deepen the understanding of the express warranty a comparative study will be performed. The Norwegian system has a very different and remarkable approach compared to the regime of warranties and is therefore chosen as the object of this study. The system, with particular focus on the Norwegian Marine Insurance Plans, will be described and its relevant parts will be compared to the English. In the final chapter the author will use the findings of the research of the English system of warranties and of the comparative study to determine whether the system of warranties is effective in respect to its purpose and whether it contributes to the upholding of a good balance between assured and underwriter.