LEGAL PROBLEMS ON DUTY OF DISCLOSURE UNDER MARINE INSURANCE CONTRACT

Abstract

The duty of disclosure is important duty under utmost good faith doctrine that assists the party to marine insurance contracts have an equal status prior execution of the contracts. The party to the contracts shall entitle to obtain material circumstances from another for their own of risk assessment. This duty causes controversial problems in practice, for example, the assured’s duty is too onerous, extension of compliance scope for the post-contractual period and unfair remedy.

Those problems affect to the development of marine insurance law in several jurisdictions. It is significant to highlight a change from ‘duty of disclosure’ to ‘duty of fair presentation’ in the United Kingdom where originated the ancient of marine insurance law. The  new duty imposes the insurer to have more active part at the pre-contractual period and include imposing a fair remedy. Noticeably, the new duty attempts to close the loophole in accordance with the duty of disclosure.

In Thailand, there is no direct provision governing the duty of disclosure under the marine insurance contracts. The previous judgments ruled the applicable law to the marine insurance cases in two ways; one, the application of Marine Insurance Act 1906 and another, the application of insurance law under the Civil and Commercial Code. The application of both laws leaded to significant questions and legal problems respectively. With a purpose to resolve these problems and build a trust to players, the marine insurance law provision regarding to duty of disclosure should be enacted with the provisions to state equitable duty between the assured and insurer, limitation of the duty’s scope at the pre-contractual period and imposing a fair remedy.