SOUTH AFRICAN MARINE INSURANCE LAW: THE CURRENT STATE OF OUR DRAFT MARINE INSURANCE BILL AND THE EFFECT OF ITS PROMULGATION ON THE SOUTH AFRICAN MARINE INSURANCE INDUSTRY

Abstract

In 1997 a draft proposal for a Marine Insurance Act was prepared as a new South African statute in response to a call for the development of marine insurance by legal practitioners, academics, various members of the Maritime Law Association and other members of various Marine Underwriting bodies (the draft bill was redrafted in 1997 by its main draftsman Adv Douglas Shaw QC). The draft legislation, tends to adopt the form and structure of the English Marine Insurance Act 1906 (6 Edw 7c 41), with minor differences. For instance, in keeping with the South African law on insurance, the draft Act excludes the English law concept “uberrima fides”, which has been rejected as an alien concept under South African insurance law. It is essential for legislature to review the status of the bill as marine insurance forms the oldest part of our well established maritime economy. Developments in marine insurance laws will enable South Africa to participate more meaningfully from a legislative point of view in the international arena. The draft bill is a useful tool in determining the probable future direction of the developments in South African marine insurance, however, this draft legislation has not been promulgated. It is possible to underestimate the usefulness of such a code since ten years have passed since the bill’s last re-draft. It is proposed in this article that there is a need for codified South African Marine Insurance Law and that perhaps the legislature should reopen the debate on the bill and consider it in order to hasten the process of its promulgation. Further, if such a statute is developed it must be unique to South Africa in that it must reflect a balance between the modern Roman-Dutch law as applied by our courts in marine insurance matters while useful English law concepts are also reflected for the purposes of international uniformity. However, if capturing such a dichotomy in the draft bill proves to be against international marine insurance trends, perhaps the best way forward is to promulgate the existing draft Act as is. What must be achieved in the end is that South African Marine Insurance Law must lose its legal research status of being the “Cinderella” of all insurances and have positive laws that govern it specifically in the form of a South African Marine Insurance Act.