The last few decades have seen a marked
increase in occurrences of international economic fraud,
and the shipping world has not by any means been excluded
from these trends. The marine insurance underwriter has emerged as
one of the primary targets of international maritime fraud, and a
study on this topic is therefore urgently required in order to
identify some of the primary problem areas and to provide publicity
in respect of an otherwise unexplored world.
One of the most common occurrences of fraud in respect to insurance
claims appear to be that of the wilful casting away of a vessel by
the shipowner, such a vessel inevitably being grossly over-insured.
The headings under which the fraudulent assured will base a claim for
compensation will inevitably be that of loss caused by perils of the
seas or by barratry. A discussion relating to the onus of proof in
these matters as well as the issue of causation is required.
Another fashionable method of defrauding the underwriter, is the
presentation of fraudulent documentation to substantiate either a
fraudulent claim, or an exaggerated one. It must also be noted that
the occurrence of fraudulent claims will not take place in a vacuum,
and will depend to a large degree on such factors as international
market conditions, wars, sanctions, and civil disturbances. There is
also evidence to suggest a sinister hand behind the scene, exploiting
situations and people for its own benefit. The name of this
phenomenon is that of organised crime, operating far beyond the
reach of the law and across national boundaries.
The point of departure is that of English law, since as result of the
South African colonial heritage, English marine insurance law has
greatly moulded and shaped South Afric an law. But, as will be seen,
the law to be applied in South African marine insurance matters, will
probably be that of Roman-Dutch law. In addition, any contemporary
research on this topic must of necessity contain reference to the
amazing fraud of the supertanker.
Other issues which could not escape discussion include that of flags
of convenience and the issue of international criminal prosecutions.
On the latter, a study of the findings of the Roskill report has been
included, as well as the English law commission recommendations
regarding issues of jurisdiction. A brief overview of the American
RICO legislation was also necessary.
The hope is expressed that this thesis will bring clarity to a very
difficult area of research, to an otherwise closed book. The role of
organised crime syndicates cannot ever be under-emphasised, and
education and publicity on this topic, regardless how humble, is of
the utmost importance.
Marine Insurance Frauds: Table of Contents
TABLE OF BOOKS
TABLE OF ARTICLES
TABLE OF CASES
TABLE OF STATUTES:
1. AUSTRALIA
2. ENGLAND
3. GERMANY
4. NETHERLANDS
6. SOUTH AFRICA
7. UNITED STATES OF AMERICA
TABLE OF CONVENTIONS
MISCELLANEOUS
PART 1
INTRODUCTION
Chapter 1 INTRODUCTION
Chapter 2 INTRODUCING MARITIME FRAUD
(A) Defining maritime fraud
(B) Setting the scene
(C) Current trends
(D) Identifying frauds with respect to insurance claims
(E) Conclusion
Chapter 3 THE SALEM
(A) The background facts
(B) The decision of the Court of the first instance
(C) The findings of the Court of appeal
(D) The House of Lords
(E) Conclusion
Chapter 4 OTHER FACTORS INCIDENTAL
TO INSURANCE CLAIMS
(A) Introduction
(B) Organised crime
(C) The phenomenon called deviation
(D) Documentary frauds
(E) The effect of containerisation
(F) Conclusion
Chapter 5 WHICH LAW APPLIES?
(A)Introduction
(B) Historical background
(C) The Admiralty Jurisdiction Regulation Act
(D) Conclusion
PART II
FRAUDULENT INSURANCE CLAIMS
Chapter 6 WILFUL MISCONDUCT
Chapter 7 THE FRAUDULENT ASSURED
(A) Introduction
(B) Perils of the seas
(C) Barratry: Background
(D) The master and the mariners
(E) The wrongful act
(F) The wilful act
(G) The prejudice of the owner
(H) Non-complicity of the shipowner
(I) Onus and the order for ship's papers
(J) Who can step into the shipowner's shoes?
(K) Causation
(L) Conclusion
Chapter 8 THE POSITION IN ROMAN-DUTCH LAW
(A) Introduction
(B) Historical background
(C) Legislative intervention
(D) Marine insurance fraud preventative measures
(E) Deviation
(F) Conclusion
PART III
ENFORCEMENT
Chapter 9 FACTORS IMPEDING PREVENTION AND
ENFORCEMENT
(A) Problems defined and highlighted
(B) The value of interstate cooperation
(C) Conclusion
Chapter 10 THE IMPORTANCE OF THE MARITIME FLAG
Chapter 11 TRANSNATIONAL CRIMES
(A) Territorial Jurisdiction
(B) Jurisdiction over the high seas
(C) Conclusion
Chapter 12 INITIATIVES IN THE BATTLE AGAINST
MARITIME FRAUD
(A) Introduction
(B) The new insurance policy
(C) English law commission recommendations pertaining to issues of
jurisdiction
(D) The role of the Racketeer Influenced Corrupt Organisations
Act of 1970
(E) Fraud investigation initiatives
(F) Conclusion
