Marine insurance policies can either specify an agreed value or
specify that a value be determined when a claim is made. A recent
New Zealand case serves as a reminder of the importance of using
correct terminology in an insurance policy, and of the need to
check and understand the wording when the risk is placed.
In Vero Insurance NZ Limited v Posa (Unreported, High
Court, Hamilton, Asher J, 6 August 2008) the question of whether a
policy was for an agreed value arose in relation to a wider issue
of material non-disclosure. In 2005 Mr Posa was storing a
pleasurecraft at his home when it was destroyed by a fire. The
origin of the fire was identified as a battery that was attached to
the vessel's motor. The insurer investigated the incident and
in doing so uncovered what it perceived as a degree of irregularity
on the part of the assured. It declined the claim on a number of
grounds. One of the grounds was for a failure to disclose material
information at previous renewals of the policy; in particular,
failing to tell the insurer about unsuccessful attempts to sell the
vessel for less than the going market rate. Whether the disclosure
was material in part turned on whether the policy was an agreed
Marine Insurance Act 1908
The case relied on the interpretation of the New Zealand Marine
Insurance Act 1908 (MI Act). The New Zealand MI Act is in all
material respects identical to the Australian and English Acts.
A marine policy may be valued or unvalued (in New Zealand see
section 28(1) of the MI Act). A valued policy is one that sets out
the agreed amount in advance, whereas an unvalued policy does not
specify the value of the subject matter and leaves the insurable
value to be subsequently ascertained (see section 29).
Section 28 of the New Zealand MI Act provides:
(2) A valued policy is a policy which specifies the agreed
value of the subject-matter insured.
(3) Subject to the provisions of this Act, and in the
absence of fraud, the value fixed by the policy is, as between the
insurer and assured, conclusive of the insurable value of the
subject intended to be insured, whether the loss is total or
The Court's findings
In Posa, the insurer relied on the policy Schedule
stating that the 'sum insured' was $105,000 and reference
to an 'agreed value' in the policy definitions, as grounds
for the policy being for an agreed amount. The following featured
in the policy and supporting documents:
The policy Schedule stated the 'sum insured' was for
The introductory paragraph of the policy stated that the
'total liability of the company shall not exceed the
amount specified in the Schedule'.
The definition of 'agreed value' stated: 'the
agreed value would be used to help Vero measure the amount
of the loss'.
The Conditions provided Vero could settle up to the
sum insured specified in the Schedule. In addition, if there was a
total loss, Vero 'would not deduct for depreciation in
determining the value of any property'.
Justice Asher disagreed with the position advanced by the
insurer. Following the UK High Court in Thor Navigation Inc v
Ingosstrakh Insurance Company  1 Lloyd's Rep 547,
his Honour found insufficient intention to fix a value for the
vessel on his interpretation of the policy terms.
The terms did no more than fix a maximum amount that
could be paid out. It was explicit that the insurable value was
still subject to determination at the date of the claim being made
and accordingly the policy was held to be an unvalued policy.
As a result, the Court found the insurer's evidence as to
materiality was of limited value. Justice Asher upheld the District
Court Judge's finding of no material non-disclosure by the
insured at renewal of the policy.
The lesson to take from this case is that if the parties intend
for the policy to be a valued one, the language used must be clear.
Using legal terms of art such as 'agreed value',
'fixed' or 'sum insured' may not be enough in
themselves. Underwriters should therefore expressly refer to the
policy being valued, and ensure other provisions in the policy and
supporting documents are consistent with this.
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This publication is intended as a first point of reference
and should not be relied on as a substitute for professional
advice. Specialist legal advice should always be sought in relation
to any particular circumstances and no liability will be accepted
for any losses incurred by those relying solely on this
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