Abstract
Like many other aspects of Australian law, both common and statute law, what may be described as "Australian marine insurance law" owes its origin to the law of England. Indeed, the High Court of Australia recently commented, in a rather different context, that" Australian law is not only the historical successor of, but is an organic development from, the law of England." The judicial method in common law countries is assisted by concepts such as the doctrine of utmost good faith. Only when the courts are armed with such concepts can they fairly resolve the particular circumstances of the many and varied cases corning before them, doing so in a just and fair manner. Inflexible formulae and precise rules, whilst they may achieve certainty in the marketplace, lend themselves to injustices; the applicable doctrine having no inherent flexibility to deal with the nuances of differing fact situations. The nature of the insurance contract having remained basically the same through the ages, perpetuating the need for substantial disclosure, it cannot be properly said that the doctrine of utmost good faith is out of date. However, the contemporary manifestation of this doctrine in the context of marine insurance is, in the author’s view, in need of further substantive reform.
Recommended Citation
CMG, The Hon. Justice MD Kirby AC
(1996)
"Maritime Insurance - Is the Doctrine of Utmost Faith Out of Date?,"
National Law School Journal: Vol. 8:
Iss.
1, Article 3.
Available at:
https://repository.nls.ac.in/nlsj/vol8/iss1/3