SPANISH COMMERCIAL CODE
Title VII
Marine insurance
§ 1. General rulesSection One. Scope
Section 1158.
Apply to the insurance referred to in this title, the provisions in
Articles 512 and following up to 560, inclusive, except for those
matters that the title regulate otherwise.
Section 1159.
The rules of this Title shall apply in the absence of the
stipulations of the parties, except in matters in which the rule is
expressly imperative.
Section 1160. Marine insurance may cover:
1. O A ship or vessel, fittings, and fixed or moving objects, regardless of where they are even under construction;
2. ° Goods or any other kind of property which may suffer risks of maritime, river or lake;
3. ° The value of freight and disbursements incurred by those organizing an expedition at sea, or
4.
° The responsibility of a ship or other object, for damages that may
result against third parties as a result of use or navigation.
Section 1161.
Generally, marine insurance are intended to indemnify the insured for
loss or damage that may occur to the insured for the risks involved in a
maritime adventure, river, lake, or inland waterways.
Section 1162. The adventure and its extent depend on what the parties stipulated in the insurance contract.
However,
in the absence of any stipulation to the contrary, including the risk
understand the dangers arising or that may occur as a result of browsing
or being the ship or vessel in port or in detention, including in this
concept the dangers of weather conditions, fire, pirates, thieves,
robbers, catch, shipwrecks, groundings, collisions, forced change of
route, boarding, looting, seized by order of the administrative
authority to order withholding foreign power, retaliation, and in
general all acts of God occurring in the sea or other means.
Any exceptions to the risks identified in the preceding paragraph shall be expressly stated in the policy.
Section 1163.
In addition to the risks identified in the previous article, the
parties may add to the insurance contract may face other risks that the
insured, either while in port, dock, sea, rivers, lakes and canals, or
when it is not a ship while it is in transit through other means of
transport or in storage before or after an expedition ship.
Section Two. Of insurable interest
Section 1164.
Marine insurance can take anyone with an interest in conservation of
the insured while running the risk of a maritime adventure, whether that
interest directly affect their own property or to certain obligations
in relation to the insured.
It
is understood that a person is interested in a maritime adventure when
she is in any legal relationship or possession with respect to property
subject to maritime adventure, and as a result of that relationship,
that person may be affected with the preservation or good and timely
arrival of the thing at the end of the adventure, or could be harmed by
damage to or loss, or detention, or incurring a liability in respect of
the thing, their damage, loss or theft during the time insured.
Section 1165. The insurer must justify its insurable interest at the time the loss occurs or damage to the insured.
Section 1166.
Is void and of no insurance effected after the cessation of the risks
if the time of its conclusion, the insured or who hired him, knew of
the accident have occurred, or the insurer, the risks they have ceased.
Section 1167.
When the insured must pass over custody or property of several people
while they are running risks, insurance of goods means held on behalf
of whom it may concern, unless the policy provides otherwise.
Section 1168.
The benefit of insurance may be assigned or transferred before or
after the accident occurred. The transferee will have all the rights
that correspond to the transferor in the policy assigned.
The
assignment of insurance or the right to compensation shall be subject
to the standards prescribed by this Code for the transfer of goodwill,
as the person was how widespread the policy.
Section Three. The insurable value
Section 1169.
In insurance on ship, the parties may mutually agree the value of the
insured in the policy. It is presumed that this has been done, if it is
expressly mentioned in the policy value for the insured.
The insurer may, before the conclusion of the contract, that such valuation is made by a naval expert.
Except
where fraud is proven either party, the value stated in the policy and
shall be deemed as the only true for all purposes of the contract
excluding the valuation made of the insured for the sole purpose of
determining whether the claim or does not constitute a constructive
total loss or assimilated.
Section 1170.
If the contract the parties have not entered a value for the
subject-matter insured shall apply the provisions of Articles 532, 533
and 535 of this Code.
Section 1171.
The sum insured in the transport of things may also comprise the
value of them in the port where the expedition begins, all reasonable
costs for them to get to your destination, including insurance premium.
However,
the sum insured may be up to the amount that can reasonably be obtained
from the sale of things, if they come near the place of healthy
destination.
If any doubt about the selling price at the destination for loading sound, it may also be established by experts.
Section 1172.
Can ensure the value of freight and disbursements incurred by those
organizing a maritime expedition, and they can leave to recover for a
maritime risk or otherwise expressly covered in the policy.
§ 2. Conclusion of contract
Section 1173.
The marine insurance contract means perfected from the time the
insurer express in writing their acceptance of the written proposal to
hold insurance, as it has been made directly by the proposer or anyone
on your behalf. Serve to justify the time the proposal was accepted, the
annotations that the insurer has stamped on the proposal cover sheet or
other document used to use between insurers, brokers and insurers, for
the contract.
Perfected
the contract, the insurer shall issue as soon as possible the policy.
You will also have the merit of policy, cover note or other document in
practice use the insurer to indicate safe conditions have been accepted
by him.
Section 1174.
In insurance on goods or cargo need not be precise identification of
the insured, it may be contracted on behalf of whom it may concern.
When
it comes to safety of ship and it is not in contract by the owner, the
insurer shall specify in the policy or insurable interest relationship
exists between the person to whom it extends the policy and the ship is
secured. In any case, this is the date and time they begin to take risks
on behalf of the insurer.
Section 1175.
When insurance is governed by clauses forms provided by the insurer,
or the use is known of the parties, the policy will be enough to make a
mention of them, that such clauses are hereby incorporated into the
contract. But if any doubt about the interpretation to be given to the
specific rules incorporated, they are construed against the one who
issued the policy.
§ 3. Obligations and rights of the parties
Section 1176.
In the case of the obligations outlined in number 1. Of article 556,
the insured must fully inform the insurer before a contract is in all
circumstances concerning the risks and aims to ensure it is heard by the
insured.
Presumably all circumstances known to the insured that he can not ignore the ordinary course of business.
Also,
any relevant statement made by the risks to the broker or the insured
to the insurer during the negotiations preceding the contract must be
true.
Section 1177. To obtain compensation for a claim, the insured must demonstrate:
1.
° The or events that constitute it. Regarding the origin of the damage
or expense, the insured should only list the events that presumably
produced it;
2. ° The shipment of the insured, if any;
3. ° The insurance contract, and
4. ° The loss or impairment of the insured.
Section 1178.
In case of accident, the insured may bring an action for failure to
obtain compensation for damages suffered by the insured or the
abandonment, to demand payment of the total sum insured in cases where
this Code or the contract so allow.
Section 1179. The insured person may jointly promote the action of abandonment and breakdown, so that the latter stands in the first grant.
Section 1180. The insurer will be liable for any loss or damage resulting from maritime or other risks covered by the policy events.
Also, if not expressly excluded, indemnify the insurer in addition:
1. ° For the contribution of the insured in general average, except if it comes from a risk excluded by insurance, and
2.
° for expenses incurred in order to prevent the object insured suffers
damage or lessen its effects, provided the damage is avoided or reduced
is covered by the policy.
In any case, the costs can not exceed the indicated value of damage avoided.
Section 1181.
The insurer is liable for loss or damage of the insured arising out
of fault or misconduct of the captain or crew. It will not be
compensated for loss or damage to the hull that comes from intent of the
master, unless expressly stated.
Section 1182.
The insurer is not liable for losses caused by delay, even one having
its origin in a risk covered by the policy, unless expressly so
provided.
Section 1183.
Unless otherwise agreed, the insurer is not liable for ordinary
filtration phenomena, breakage or wear, inherent vice or nature of the
insured and other normal transport.
Section 1184.
When the loss or damage of the insured comes from several causes, the
insurer will be liable if the primary cause or factor is a risk covered
by the policy. However, whatever the terms of the contract if it is not
possible to establish which was the main cause or if several
simultaneous determinants were among them any one that constituted a
risk insured, the insurer liable for the damage under the terms stated
by the policy.
Section 1185. Correspond to the insurer the burden of proving that the incident has occurred for an event or risk not covered by the policy.
Section 1186.
The loss may be total or partial. Any losses not covered by the
concepts of total loss or defined in the following articles shall be
deemed a partial loss.
Section 1187. The total loss may be real or effective. It can also be assimilated or constructive.
There
will be real or actual total loss where the insured object is
completely destroyed or so damaged, lost forever fitness for purpose for
which it is intended, or when the insured is irretrievably deprived of
it. All this is without prejudice to what has been stated in the policy.
Section 1188. If after a reasonable time, have not heard from a ship, is presumed effective and the total loss of cargo.
Section 1189.
Unless the policy otherwise provides, there will be assimilated total
loss when the subject-matter insured is reasonably abandoned either
because the actual total loss appears inevitable or because you can not
avoid the loss, without incurring any expenses that exceed the value of
the object after the disbursement.
Will be considered a total loss assimilated, especially when:
1.
° When the insured is deprived of the ship or goods due to a risk
covered by the policy and is unlikely to recover or the cost of recovery
exceeds the value of the vessel or goods after recovery;
2.
° When damage to a ship by an insured peril, be such that the cost of
repairs exceeds the value of that ship, once repaired. In estimating the
cost of repairs, no deduction shall be made by general average
contributions to those repairs, by other interests. But take into
account the costs of future salvage operations and of any future general
average contribution would affect the ship to be repaired, and
3.
° When the cost of repair and for forwarding to their destination, they
exceed the value on the date of arrival at your destination, whether it
is damage to goods or cargo.
Section 1190. Unless otherwise provided, the total loss insurance covers both the assimilated total loss as the real or effective.
Section 1191.
Unless the policy otherwise provides, the insurer is liable for all
losses suffered by the insured during the coverage period, although the
amount of all of them exceed the sum insured.
But if a total loss following a partial damage not repaired, the insured may only demand compensation for total loss.
Section 1192.
If the insured elects to claim a total loss, the insurer must notify
its intention to relinquish. In the absence of such notice, the insurer
may bring an action for failure.
Section 1193.
If assimilated total loss, the insured shall within three months
since he had actual knowledge that the loss had that character, to the
insurer written notice of its intention to relinquish.
The
expression written communication also includes telegram, telex or other
means to record, or provide a record of receiving the message sent.
The notification to the insurer an abandonment action, substitutes for these effects to the notice of abandonment.
The
notice or application must indicate unequivocally the intention to
relinquish the subject-matter insured unconditionally to the insurer.
Section 1194.
The notice of abandonment is not required in the breakdown or
accident, by its nature or magnitude, making it impossible for the
insurer measures to recover the thing to rescue distressed or decrease
the effects of the accident.
Section 1195. The abdication notice interrupts prescription of the actions of the insured against the insurer.
Section 1196.
The acceptance of abandonment may be express or inferred from the
conduct of the insurer. In any case, its effects can be traced back to
the date of receipt of the notice of abandonment or notice of demand for
abdication.
The insurer may, in any case, waive the requirement of notice or warning respectively.
Section 1197.
The acceptance of abandonment, as well as to give it the irrevocable,
it means that the insurer recognizes its responsibility for the total
amount insured.
Section 1198.
The abdication accepted or upheld by a final ruling, the insurer
transfers all rights and obligations of the insured in respect of the
insured, by the mere operation of law.
However,
while not accepted the abandonment or final decision issued declaring
it invalid, the insurer may recognize its obligation to compensate the
total loss of the insured object and reject the transfer of ownership of
the insured.
Section 1199.
The insured has been privileged abandonment is subject to payment of
the amount insured, in preference to any other credit can enjoy
privilege over it, with the exception of claims on the ship referred to
in Articles 844, 845 and 846 .
§ 4. Liability Insurance
Section 1200.
The insured in a liability insurance only entitled to compensation
and reimbursement of expenses incurred, when it has paid compensation
for damage to third.
Notwithstanding
the foregoing, the insured must notify the insurer of any claim that is
the subject and can compromise the liability. It will be also obliged
to take all protective measures as may be appropriate.
Section 1201.
Only in cases where a liability insurer provides a guarantee to cover
the liability of the insured, may be sued directly by the third party
to whom it has issued such a guarantee.
This
does not apply if the insured is entitled to limit liability and the
insurer it was constituted of the respective fund limitation.
Liability
insurance for a shipowner collision or collision with any fixed or
floating object, which aims to repair damage caused to third parties,
but produces obligation to indemnify in case of failure of the sum
insured on the policy of the Town .
Section 1202.
Whatever the number of events occurring during the term of liability
insurance, the amount covered by each insurer is, for each event, the
limit of your coverage.
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