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CARGO INSURANCE POLICY OF
dd. 20.04.2004
(PE100)
Free and non-committal translation
TITLE
A : SCOPE OF APPLICATION
Article
1 Subject to the following
stipulations, this insurance applies to goods and objects during their transit
and
intermediate storage.
TITLE
B : TIME AND PLACE OF COVER
Article
2 2.1 This
insurance attaches at the moment when the insured goods and objects leave the
agreed place of shipment.
2.2 This insurance terminates on the
arrival of the insured goods and objects in the consignee’s warehouse or in any
other final warehouse or final location at the named destination.
2.3 Loading and unloading are
included. Loading is the operation by which the goods and objects are lifted in
the immediate vicinity of the means of conveyance, in order to be placed onto
same. Unloading is the opposite operation.
2.4 This insurance shall remain in
force without any interruption or limitation in time during the normal course
of the transit.
However,
in so far as the goods and objects are still in the normal course of transit
and have not yet reached the final warehouse or final location such as defined
above, the insurance shall remain in force during:
- 60 days after discharge of the goods and
objects from the seagoing vessel at the final port of discharge,
- 30 days
after unloading of the goods and objects from the aircraft at the final airport
of discharge.
2.5 Any extension of the coverage
beyond the aforementioned periods must be requested from the insurers, either
at the time of acceptance of the risk or before the expiry of the
above-mentioned periods of 60 or 30 days. This extension can be granted by the
insurers, subject to an adjustment of the premium to be agreed.
Article
3 3.1 Notwithstanding any change of the intended voyage,
route or means of conveyance, including intermediate storage, transhipment and
re-forwarding, occurring beyond the Assureds’ control, the insurance shall
remain in force without any adjustment of the premium.
3.2 The insurance shall also remain in
force, subject to an adjustment of the premium to be agreed when any one of the
above changes occurs as a consequence of an act of the Assured.
TITLE C : INSURANCE CONDITIONS
Article
4 The goods
and objects can be insured as follows :
either in accordance with the
conditions of Article 6 :
FREE OF PARTICULAR AVERAGE (F.P.A.),
or in accordance with the conditions of Article 7 :
FULL CONDITIONS OF
or in accordance with the conditions of article 8 :
ALL RISKS (A.R.).
Unless
provided otherwise, the insurance shall be deemed to be concluded subject to
the conditions of article 8: “All Risks”.
Article
5 5.1 Without derogation to the provisions of Article 11, the
insurers shall at all times take for their account the contribution in General Average, calculated
general and adjusted in accordance
with the laws and practice of the place of destination
average or of the place where the voyage is
validly terminated, yet at least in accordance with the York-Antwerp Rules when
same are applicable under the terms of the contract of affreightment
or Bill of Lading.
5.2 General Average contributions,
also those which consist of expenditures which are payable or have been
advanced before the arrival at destination, shall not be deducted from the
insured value.
In
case of General Average, the insurers shall, if so requested by the Assured,
act in the latter’s place for providing all guarantees and deposits as well as
for paying expenses related thereto.
Article 6 Without
derogation to the provisions of article 11, the insurers shall take for their
account in case of an insurance “Free of Particular Average”:
free of
particular 6.1 every
physical total loss arising from
storm, shipwreck, stranding,
collision,
average forced entry
into a port of distress, forced change of route, voyage and/or vessel,
jettison, fire, looting, capture and molestation by pirates, perils of the sea
during quarantine, negligence of the Master and of the crew, barratry of the
Master and, in general, from all accidents and perils at sea ;
There
is a physical total loss when the insured object is destroyed, or is damaged to
such a degree that it ceases to be a thing with the properties of the insured
object, or when it is damaged to such an extent that the repair costs and the
costs to be made in order to forward it to its final destination would exceed
its value at destination, or when the Assured would be irrevocably deprived of
the insured object, or when it is improbable that he will recover it, or that
the costs to be made for this purpose would exceed the value of the insured
object at the time when he would recover it.
6.2 all
physical damage and/or losses occurred during the voyage by sea or inland
waterways, when one or several of the following events has/have taken place :
- shipwreck;
- fire;
- stranding;
- collision;
- discharge as a
consequence of forced entry into a port of distress;
6.3 all
cases for which abandonment can be invoked under article 12;
6.4 all physical damage and/or
losses caused by falling into the water during loading, unloading and
transhipment of seagoing vessels and inland navigation craft;
6.5 all physical damage and/or
losses during transit and/or intermediate storage on land or during transport
by air, and caused by one or several of the following occurrences
:
- an accident
incurred by the means of conveyance on which the goods and objects are loaded
and/or the building in which the goods and objects are stored;
- fire;
- lightning;
- explosion;
- collapse of bridges,
tunnels and other engineering structures;
- flood;
- avalanche,
snowfall, landslide;
- emergency landing
of an aircraft due to a technical failure of this conveyance;
6.6 all physical damage and /or
losses caused by theft;
6.7 all physical damage and/or losses
caused by adverse climatic conditions are also covered if subsequent to one of
the events mentioned under article 6.5.
Article
7 In case
of insurance at the “Full Conditions of
full conditions Average” - all physical damage and/or losses which are
the consequence of
of
Article
8 In
case of insurance at the “All Risks” conditions, the insurers shall indemnify
all physical damage and/or losses, howsoever caused, without derogating
all risks however,
to the stipulations of article 11.
Article
9 Unless
stipulated otherwise, the coverage of goods carried on deck with the
consent of the
Assured shall be limited
to physical damage
and/or losses
cargo on deck which are the consequence of the occurrences
mentioned under articles 6.2 and 6.3, as well as the consequence of jettison,
washing overboard and breakage due to shifting of the cargo.
Goods
and objects loaded in containers on board of a vessel especially designed for
the carriage of containers, remain covered at the conditions agreed upon for
carriage under deck, even if such goods and objects are carried on deck.
Article
10 The insurers
will also indemnify those expenses which are reasonably incurred
expenses in order to avert and/or mitigate
covered physical damage and/or losses.
Article
11 11.1 In no case
shall this insurance cover:
exclusions 11.1.1 damage, losses and/or expenses, directly or indirectly,
wholly or partly caused by or arising from the risks of radioactive
contamination as described in the latest relevant clause issued by the
recognized Belgian Professional Association of Marine Insurers and published in
the appendix of the “Belgian Official Gazette”;
11.1.2 damage, losses
and/or expenses caused by seizure, confiscation and any other occurrence which
is the consequence of contraband, prohibited or clandestine commerce.
11.2 Unless stipulated otherwise, the
insurers will furthermore not indemnify :
11.2.1 rejection
risks : the refusal of undamaged insured goods and objects by the competent
authorities and the consequences thereof;
11.2.2 the
contractual and/or the extra-contractual liability of the Assured arising from
damage and/or losses howsoever caused by the insured goods and objects, without
derogation, however, to the stipulations of article 12.3;
11.2.3 expenses, of
whatever nature, of quarantine, wintering and lay days;
11.2.4 damage, losses
and/or expenses caused by :
- inherent
vice of the insured goods and objects;
- faulty packaging
and/or insufficient packing of the insured goods and objects, carried out by
the Assured and/or his servants before inception of the voyage;
- delay which is not caused by
an insured peril;
11.2.5 damage, losses
and/or expenses directly or indirectly, wholly or partly caused by - or arising
from :
11.2.5.1 - war
with or without declaration, civil war, revolution, hostilities, reprisals,
arrest, capture, molestation by whatever government, ally or enemy, recognized
or not, mutiny, insurrection or civil commotion arising therefrom
or any hostile act perpetrated by or against a belligerent power;
- capture, seizure, arrest,
enforcement order or detention, arising from the perils mentioned under the
preceding paragraph, as well as the consequences thereof or any attempt thereto;
- derelict mines,
torpedoes, bombs or other derelict weapons of war;
- other
war risks defined under Belgian Statute Law;
- all
war accidents and war perils in general;
11.2.5.2 - strike,
riot, civil commotion, lock-out or disorder arising from labour disputes;
- terrorism
or any action based on a political motive;
11.2.6 consequential
damage, losses and/or expenses, even if caused by an insured peril;
11.2.7 difference in
duties on arrival at destination.
TITLE
D : ABANDONMENT
Article
12 12.1 Abandonment
extends exclusively to the goods and objects which are the subject-matter of
the insurance and the risk.
12.2 Without derogation to the
stipulations of article 11 of this policy and notwithstanding the stipulations
of the “Commercial Code”, abandonment can only be notified in the following
cases:
- capture by
pirates;
- physical damage and/or losses of at least ¾
of the value, if caused by a peril insured against, irrespective of the means
of conveyance and place of storage;
- absence of news for a period of 90 days
after reception of the last message from the vessel or inland navigation craft
or when same are considered missing by a competent authority. The
above-mentioned period of 90 days is reduced to 60 days for means of conveyance
other than ocean-going vessels and inland navigation craft.
Goods
and objects insured “Free of Particular Average”, as defined in article 6 and
subject to smashing, breakage or leakage can be abandoned on the grounds of
physical damage and/or losses of at least ¾ of the value, but only in those
cases mentioned under article 6.2 and occurred during the carriage by sea or by
inland waterways.
Radioactive
goods and objects, even if same became radioactive after the inception of the
risk, can never be abandoned.
By
way of derogation from all conflicting legal and/or contractual stipulations,
the insurers are allowed a period of 60 days to accept or reject an abandonment
of which they have been notified. If they have not communicated their decision
within this period of 60 days, they are deemed to have accepted the
abandonment.
There
is no possibility of appeal against the decision of the insurers. If
abandonment is not accepted, the settlement shall be effected by way of total
loss.
Whenever
the settlement is effected by way of total loss due to the rejection of the
abandonment by the insurers, the Assured will remain the owner of the insured
goods and objects, the eventual salvage value of which remains for his account.
12.3 When the abandonment of the insured
goods and objects is accepted, the liability of the insurers as owners of the
abandoned goods and objects for any damage and/or losses caused by the
abandoned goods and objects attaches from the time when the transfer of the
ownership of same to the insurers takes place.
TITLE
E : COST OF CLEANING, REMOVAL AND DESTRUCTION
Article
13 13.1 Subject to an express agreement and against adjustment of
the premium to be agreed upon, the insurers will take for their account –
without however exceeding a limit to be agreed – the costs of cleaning, removal
and destruction of debris if same have been incurred following the
implementation of a measure taken or ordered by a competent authority, or
reasonably incurred by the Assured, considering the circumstances, and only in
so as far as such costs are the consequence of a covered peril.
13.2 In case of settlement by way of total loss subsequent to
the rejection of the abandonment in accordance with article 12.2, the
aforementioned costs are automatically reimbursed up to 25 % of the settlement
in total loss. This limitation shall not apply to actually incurred costs up to
an amount not exceeding € 50.000,00.
TITLE
F : SETTLEMENT OF CLAIMS
Article
14 Any indemnity
due by the insurers is paid immediately, after proper substantiation, to the
bearer of the original policy.
Article
15 15.1 When
the insured goods and objects are sold or declared unfit subsequently to a
covered peril elsewhere than at destination, the insurers shall pay the
difference between the insured value and the net proceeds of the sale, after
deduction of any freight and expenses which are not due.
15.2 The settlement of the damage and/or
losses at destination shall be effected on the basis of the value of the
insured goods and objects before customs clearance, even if the assessment of
the damage occurred after payment of all duties. The share of damage and/or
losses thus calculated shall be indemnified in proportion to the insured value.
15.3 When the insured goods and objects
are sold at destination with the consent of all parties involved, the net proceeds
of the sale will serve as basis to determine the percentage of depreciation
suffered by the insured goods and objects in relation to their sound value on
the day and at the place of the sale. This
percentage shall be applied to the insured value.
Article
16 The Assured has the option to calculate
the physical damage and/or losses or the abandonment separately per ship, barge
or any other means of conveyance, per storage location, per bill of lading, per
category of goods and objects or per agreed series.
Unless
stipulated otherwise, the series are formed at the Assureds’ option by the
sequence of marks, numbers or other distinctive signs, or according to the
order of discharge.
TITLE
G : OTHER STIPULATIONS
Article
17 This insurance is concluded for the account of whom it may
concern.
Article
18 This insurance
is concluded on good or bad tidings to be executed in good faith.
Article
19 The insurers
are only liable for their share underwritten in the policy and are consequently not jointly and severally bound.
Article
20 In case of damage and/or losses caused
by a fire in a warehouse or equivalent place of storage, neither the Assured
nor the subrogated insurers shall effect recovery from the responsible Third
Party, if the latter can produce a fire insurance policy in force containing a
clause by which his insurers have waived their rights of recovery against the
Assured of this policy or his subrogated insurers at the time of the loss.
Article
21 The
aggravations of risk arising from contracts of carriage and/or affreightment are accepted by the insurers.
Article
22 Unless
provided otherwise by mandatory conflicting legal stipulations, disputes arising between
insurers and Assured in relation to this
policy, shall
arbitration be settled by a Tribunal of Arbitrators.
Each
party nominates her arbitrator and the two arbitrators thus nominated appoint a
third arbitrator. In the event of disagreement concerning the nomination of the
third arbitrator, the latter shall be appointed by the President of the “Court
of First Instance” at the request of the first party to take action.
The
decision of the Tribunal of Arbitrators is final, unless a possibility of
appeal is provided in the arbitration agreement or in the correspondence
equivalent thereto.
Article
23 The ordinary courts remain competent for the disputes
relating exclusively to the collection of the non-disputed premium.
Article
24 Any disputes shall
be settled exclusively in
This
insurance policy is governed by Belgian law and Belgian practice.