1.1 Interest /
subject matter of the insurance
1.1.1 The subject
matter of the cargo insurance can be any monetary interest a person
has in seeing that the goods survive the perils of transport and
1.1.2 Covered are
the goods specified in the insurance policy and/or other expenses
Besides the goods, other insurable interests can also include
- taxes and
- other costs
1.1.4 The Insured
can insure his own interest (insurance for own account) or that
of another (insurance for third-party account). See No. 13 for further
2 Scope of cover
2.1 Perils and
The Insurer covers
all risks to which the goods are subject for the duration of the
percentage, the Insurer makes good loss of or damage to the insured
goods arising from an insured peril.
2.2 Special cases
goods or returned goods
or returned goods are covered under the same conditions as other
goods. This does not affect the Insured's obligation to prove that
the damage occurred during the insured transport.
2.2.2 Damaged goods
If the goods are
already damaged at the inception of the policy, the Insurer makes
good the loss or damage only if the existing damage did not have
any influence on the damage that occurred during the insured period.
2.3 Insured expenses
2.3.1 The Insurer
Average contributions (G.A.) based on an adjustment drawn up in
accordance with the law, the York-Antwerp Rules, the Rhine Rules
(IVR), or any other internationally recognised G.A. rules, provided
that the measure was intended to avert an insured loss/damage. If
the contributory value exceeds the insured value and the latter
equals the sum insured, the Insurer indemnifies to the limit of
the sum insured. Provisions relating to under insurance as well
as the conditions under No. 2.3.3 are unaffected by the above. Within
the scope of these provisions, the Insurer undertakes to reject
claims made against the Insured for compensation and expenses arising
from the Both to Blame Collision Clause;
for averting, minimising and ascertaining the scale or extent of
damage, such as
reasonably incurred in averting or minimising an insured loss when
that loss/damage has occurred (loss event) or is directly threatening;
incurred by the Insured on the instruction of the Insurer when an
insured loss/damage has occurred;
properly and reasonably incurred in assessing or determining the
insured loss/damage, as well as costs incurred by a third party
appointed to perform this task on instruction of the Insurer;
220.127.116.11 costs properly
and reasonably incurred in transhipping, temporarily storing and
forwarding the goods after an insured event or an insured accident
involving the means of transport has occurred, insofar as they were
incurred on instruction of the Insurer and are not already covered
under No. 18.104.22.168.
2.3.2 The Insurer
bears the expenses and costs as per Nos. 22.214.171.124.1 and 126.96.36.199.2
even if the measures undertaken were unsuccessful.
and costs as per Nos. 188.8.131.52 and 184.108.40.206 are reimbursed even if,
together with other payments, they exceed the sum insured.
2.3.4 The Insured
may request the Insurer to assume contributions to general average
via guarantee, advance him such contributions, as well as advance
the amount required to avert, minimise or ascertain the size of
2.4 Perils not
2.4.1 Cover is
not provided for the following perils:
220.127.116.11 war, civil
war or similar hostilities as well as perils which - whether war
be declared or not - arise out of the hostile use of weapons of
war and from the existence of derelict weapons of war as a result
of one of these perils;
18.104.22.168 strikes, lock-outs,
industrial unrest, acts of violence by terrorist or political groups
- regardless of the number of people involved - riots and other
deprivation of possession or other acts of authorities;
the use of chemical, biological, biochemical substances or electromagnetic
waves as weapons which constitute a public danger, irrespective
of other contributory causes;
nuclear energy or other ionising radiation;
or financial default of the shipowner, charterer or operator, or
in respect of any other financial dispute involving the above parties,
can prove that he exercised the diligence of a prudent businessman
in choosing the above parties or the responsible forwarding
or Assured is the buyer and, under the terms of the sales contract,
had no control over the choice of persons involved in the transport
of the goods.
2.4.2 The risks
covered under Nos. 22.214.171.124 - 126.96.36.199 and 188.8.131.52 can be insured
additionally within the scope of the respective DTV clauses.
2.5.1 The Insurer
is not liable for losses/damages arising from
184.108.40.206 a delay
in the transport;
vice or the nature of the goods;
differences or losses in number, weight or measure of the goods.
If a deductible has been agreed, however, such differences or losses
are regarded as covered;
humidity or fluctuations in temperature;
packaging or incorrect stowage insofar as the Insured acted wilfully
or with gross negligence.
2.5.2 The Insurer
is not liable for indirect loss/damage in whatever form.
In the event of
a loss/damage which, under the circumstances, could also have been
caused by a non-insured risk or peril (see Nos. 220.127.116.11 - 18.104.22.168),
the Insurer is obliged to indemnify if the loss or damage was, in
all probability, caused by an insured peril.
3 Faults of the
The Insurer is
not obliged to indemnify if the insured event is caused by a wilful
or grossly negligent act of the Insured.
4 Insured's duty
of disclosure before inception
4.1 Before inception
of the policy, the Insured is obliged to disclose all material facts
and circumstances, and to answer completely and truthfully all questions
posed by the Insurer. A material fact is a circumstance that would
influence the Insurer in accepting, declining or rating the insurance.
In case of doubt, a material fact is understood as one that the
Insurer has queried expressly or in writing.
If a representative
appointed by the Insured concludes the policy and the former is
aware of a material fact, the Insured shall be deemed to have been
aware of said material fact himself.
4.2 The Insurer
is not obliged to indemnify if incomplete or inaccurate information
This also applies
if information was not disclosed on account of the Insured's ignorance
of the fact and this was due to gross negligence on his part.
If the loss event
has already occurred, the Insurer may not refuse cover if the Insured
can prove that the incomplete or inaccurate information disclosed
influenced neither the loss event occurring nor the size or scale
of the payment obligation.
4.3 The Insurer
shall be obliged to indemnify if he was aware of the material facts
or that such facts had been inaccurately disclosed.
The same applies
if the Insured can prove that neither he nor his representative
was responsible for the incomplete or inaccurate disclosure of the
If the Insurer
requested the Insured to disclose material facts in writing, and
the latter failed to disclose a circumstance that was not queried
expressly by the Insurer, the latter is exempt from liability only
if it can be proved that the Insured, or his representative, concealed
the information with intent to deceive.
4.4 If the Insurer
is obliged to indemnify in the absence of fault on the part of the
Insured or his representative, the Insurer is due an additional
premium to be agreed on commensurate with the aggravated risk. The
same applies if neither contracting party was aware of a material
fact prior to conclusion of the policy.
4.5 The right of
the Insurer to avoid the contract for fraudulent misrepresentation
of material facts remains unaffected.
5 Alteration of
5.1 The Insured
may change the risk, in particular aggravate it, as well as allow
change by a third party.
5.2 If the Insured
alters the risk or becomes aware of a change of risk, he shall inform
the Insurer without delay.
5.3 A change of
risk is said to exist in particular when
- the commencement
or end of the insured transport is subject to considerable delay
- there is a
major deviation from the specified or customary transport route
- the destination
port or airport is changed
- the goods
are stowed on deck
5.4 The Insurer
is not obliged to indemnify if the Insured fails to disclose an
aggravation of risk, provided that the failure to disclose was neither
a wilful nor grossly negligent act and influenced neither occurrence
of the loss event nor the amount payable by the Insurer.
5.5 The Insurer
is due an additional premium commensurate with the aggravated risk,
unless the aggravation was in the Insurer's own interest or on humanitarian
grounds, or was caused by an insured event that posed a threat to
6 Alteration or
abandonment of conveyance
6.1 The Insurer
is not obliged to indemnify if the goods are shipped via a means
of transport other than the one named in the policy, or are discharged
despite direct transport having been stipulated. The same applies
if a specific means of transport or specific route were named in
6.2 The Insurer's
obligation to indemnify remains unaffected if, after inception of
the policy, the transport is altered or abandoned as a consequence
of an insured event or without the consent of the Insured. The provisions
governing alteration of risk apply correspondingly.
7 Means of transport
7.1 Insurance cover
is granted only if the means of transport are suitable for stowing
and transporting the insured goods.
vessels are considered suitable only if they meet the conditions
of the DTV's Classification and Age Clause and, where required,
are certified according to the International Safety Management Code
(ISM Code), or if the shipowner is in possession of a valid Document
of Compliance (DoC), as required by the 1974 SOLAS Convention and
7.2 Even if the
above conditions are not met, the goods are still covered if the
Insured can prove that he exercised the diligence of a prudent businessman
in choosing the carrier or forwarding agent. Should the Insured
become aware of the unsuitability of a means of transport, he shall
notify the Insurer immediately and pay a reasonable additional premium
to be agreed with the Insurer.
8 Policy duration
The policy provides
cover from warehouse to warehouse, and
8.1 commences the
moment the goods are removed - for immediate transport - from the
place of storage.
8.2 Depending on
which occurs first, the cover terminates
8.2.1 the moment
the goods arrive at the place of final delivery stipulated by the
8.2.2 the moment
the goods are forwarded after discharge at the port or airport of
destination to a place of delivery not named in the policy if this
change aggravates the risk;
8.2.3 on expiry
of 60 days after the goods have been discharged from the ocean-going
vessel or aeroplane at the port or airport of destination. Provided
the Insured's own interest is involved, the policy will not terminate
at the end of the period agreed - following discharge of the goods
from the ocean-going vessel or aeroplane at the port or airport
of destination - an insured peril delayed the insured voyage and
the Insured reported the delay immediately. The Insurer is due a
reasonable additional premium that is to be agreed;
8.2.4 if the goods
are transported as per Incoterms FOB or CFR when stowed on board
an ocean-going vessel;
8.2.5 if the goods
are sold when an insured peril has occurred and when risk is passed;
8.2.6 upon expiry
of the period agreed in No. 9.1 when goods are temporarily stored
by order of the Insured.
9.1 If the goods
need to be stored during the duration of the policy, cover is limited
to 60 days per storage period.
9.2 For storage
in the ordinary course of transit not by order of the Insured, cover
extends beyond the period agreed in No. 9.1 above only if the Insured
can prove that he had no knowledge of the storage period being exceeded
or could not, according to sound commercial principles, influence
the duration of storage.
The Insured shall
notify the Insurer immediately upon becoming aware of the storage
period having been exceeded. The Insurer is due a reasonable additional
premium to be agreed.
If the goods are
transported by sea or air, No. 8.2.3 applies on a supplementary
9.3 The periods
of storage stated in Nos. 9.1 - 9.2 include the day of arrival and
the day of departure.
10 Sum insured;
10.1 The sum insured
should correspond to the insured value of the goods.
10.2 The insured
value is the fair market value of the goods or, failing that, their
market value at the place of departure at commencement of cover
plus the cost of insurance, the costs incurred until the goods are
delivered to the carrier, and the freight ultimately paid.
as per No. 1.1.3 are covered by special arrangement only, and only
if they are part of the sum insured or correspond to the insured
value of the goods. They include anticipated profit for the buyer
of 10 % of the insured value.
10.4 The provisions
contained in No. 10.1 can be applied correspondingly to the separate
insurance of other interests. No. 10.2 applies, in particular, to
the insurance of increased value.
10.5 If the insured
value has been fixed at an agreed value, the latter determines the
insured value. The Insurer is, however, entitled to demand that
the agreed value be lowered if it exceeds the real insured value
by a substantial amount. If the sum insured is less than the agreed
value, the Insurer shall indemnify - even when the agreed value
has been lowered - only in the proportion the sum insured bears
to the agreed value.
applies accordingly to the insurance of other insurable interests.
11.1 At the Insured's
request, the Insurer is obliged to issue a signed certificate documenting
the insurance contract (policy)
If a policy has been issued, the Insurer is not obliged to indemnify
until presented with this policy. The payment to the holder of the
policy discharges the Insurer from further liability.
11.3 If the policy
is lost or destroyed, the Insurer is obliged to indemnify once the
policy has been declared invalid, or security has been given; security
by way of a guarantee is excluded. The same applies to the Insurer's
obligation to issue a replacement policy, the cost of which is borne
by the Insured.
11.4 The contents
of the policy are regarded as approved by the Insured unless contested
immediately upon issue. The right of the Insured to contest such
approval on account of an error remains unaffected.
12.1 The premium
plus additional costs and insurance tax are due immediately upon
conclusion of the insurance contract.
12.2 Payment is
considered made in good time if it is effected immediately upon
receipt of the insurance policy and/or the invoice.
12.3 If the Insured
is responsible for not making the payment in good time, he will
be regarded as having defaulted the moment he receives a written
reminder. The Insurer makes a written request for the payment and
sets a deadline for payment of at least two weeks.
12.4 If the Insured
is still in default after the two weeks have passed, the Insurer
is released of his obligation to indemnify any insured event which
occurs before the payment is made.
The Insurer may
cancel the insurance contract without notice if the Insured is still
in default after a further two weeks. The Insurer is nevertheless
entitled to payment of the agreed premium.
The Insurer is
not entitled to invoke the legal provisions contained in this section
of the conditions until he has notified the Insured in writing.
13 Insurance for
account of another
(to whom it may concern)
13.1 If insurance
is taken out for account of another and the latter is named in person,
it is assumed that the contracting party is acting not as a representative,
but in his own name for account of another.
In the case of
an insurance contract concluded "to whom it may concern" or if the
contract leaves open the account for which the insurance cover is
to apply, the provisions for insurance for account of another apply
if it emerges that the interest of another is being insured.
13.2 The Assured
is entitled to exercise his rights under the contract. However,
only the Insured is entitled to request that the policy be handed
Without the Insured consent, the Assured is not entitled to exercise
his rights under the contract and to enforce these rights in a court
of law unless he is in possession of the policy.
13.3 The Insured
is entitled to exercise in his own name the contractual rights due
to the Assured.
If a policy has been issued, the Insured is not entitled to accept
a payment and transfer the rights of the Assured unless he is in
possession of the policy.
The Insurer is not obliged to indemnify the Insured unless the latter
can prove that the Assured has given his approval to the insurance.
13.4 The Insured
is not obliged to surrender the policy to the Assured or - in the
case of insolvency of the latter - to the receiver before he has
been satisfied for claims he has on the Assured in respect of the
subject matter insured. He is entitled to satisfy himself for such
claims out of the insurance claim against the Insurer or out of
the collected indemnity.
13.5 The Insurer
may set off any claim he has on the Insured who effected the insurance
against an insurance claim in so far as the Insurer's claim results
from the insurance taken out by the Insured for the Assured.
13.6 The knowledge
and conduct of the Assured is considered to be equivalent to the
knowledge and conduct of the Insured.
13.6.1 Where the
insurance was concluded without the knowledge of the Assured, it
is of no avail whether or not he knew or ought to have known of
the occurrence. The same applies if notification of the Insured
was not feasible in due time.
13.6.2 If the Insured
concluded the contract without the Assured's consent and failed
to notify the Insurer thereof, the Insurer is not obliged to accept
a plea of ignorance in a claim against him.
13.7 The insurance
may not be concluded for the benefit of ocean carriers, carriers,
warehouse keepers and forwarding agents.
14 Sale of the
14.1 If the Insured
sells the insured goods, Articles 69, 70 Paras. 2 and 3, and 73
of the VVG (German Insurance Contracts Act) in conjunction with
the above-named provisions apply. If a policy was issued, the Insurer
may not invoke Article 69 Para. 3 of the VVG and claim before a
bona fide purchaser that he was unaware of the sale.
14.2 If a policy
has been issued, joint liability of the buyer for the payment of
premiums and ancillary costs no longer apply. Once the policy has
been issued, the Insurer cannot claim exemption from obligation
to indemnify as per No. 12.4 on account of non-payment of premium
unless the buyer knew or ought to have known the reason for this
14.3 If the compensation
claim is assigned by way of a pledge, the provision contained in
No. 14.2 Para. 2 applies in favour of the pledgee.
for the loss event
of loss event
The Insured shall
notify the Insurer immediately of any loss/damage.
15.2 Averting or
minimising the loss/damage
In the event of
a loss/damage, the Insured shall avert or minimise the damage as
far as possible. He shall observe any instructions of the Insurer
and shall request such instructions as far as circumstances allow.
of the Insurer or the surveyor
15.3.1 The Insured
shall observe the instructions of the Insurer concerning the loss,
consult immediately with the surveyor named in the policy or the
insurance certificate in order to assess the damage, and submit
the latter's survey report to the Insurer.
is good reason, the services of the nearest Lloyd's agent may be
called upon in place of the surveyor named in the policy.
The Insured shall
provide the Insurer with all information required to assess the
insured loss or the extent of the indemnification due. He is obliged
to procure and safeguard all evidence that may be of relevance to
the later clarification of events leading up to the loss, or which
are necessary for the assertion of claims of recourse.
15.5 Right of subrogation
In the event of
a loss, the Insured shall safeguard the right of recourse against
third parties who are or might be liable for the loss, as well as
assist the Insurer in the recourse proceedings.
15.6 Legal consequences
of a breach of obligations
If the Insured
fails either wilfully or with gross negligence to observe the obligations
set out in Nos. 15.2 - 15.5 above, the Insurer shall be released
of his liabilities under the insurance. In the case of gross negligence,
however, the Insurer shall not be released from his obligation to
indemnify if said infringement had no influence either on the assessment
of the loss or on the assessment or extent of the indemnification
due by the Insurer.
16 Lodgement of
claims; forfeiture of right to compensation
16.1 The Insured
shall claim for an insured loss within fifteen months of termination
of the covered risk and, if the means of transport has disappeared
presumed lost, before expiry of the period of presumptive loss.
The postmark shall evidence adherence to the time limit.
16.2 The Insured
shall forfeit his right to compensation if the claim is not made
in good time.
17.1 Loss of goods
If the goods are
lost either totally or in part, if they are no longer available
and there is no prospect of return, or if - in the opinion of an
expert - the original state of the goods has been destroyed, the
Insured is entitled to claim the share of the sum insured assigned
to the goods minus the value of salvaged goods.
If both the goods
and the means of transport have disappeared, the Insurer indemnifies
the Insured for total loss unless it can be assumed with all probability
that the loss was caused by an uninsured risk. The means of transport
are presumed lost 60 days after the expected date of arrival (30
days for journeys within Europe) and no news has been received by
the time the claim is made. If communication links are interrupted
owing to war, hostile events, civil war or civil commotion, the
time period is extended in accordance with the circumstances up
to a maximum of 6 months.
17.3Damage to goods
17.3.1 If all or
part of the goods are damaged, their fair market value or, failing
that, the market value they would have had at the place of discharge
had the loss not occurred (sound value) and their damaged value
shall be determined. The indemnification due bears the same proportion
to the sum insured as the gross damaged value bears to the gross
upon notification of the facts material to the extent of claim,
the Insurer may request the damaged value to be determined by private
sale or public auction. In this case, the gross proceeds from the
sale take the place of the damaged value. If the conditions of sale
require the seller to deliver in advance, the Insurer guarantees
the payment of the purchase price, provided he has agreed to the
terms of sale.
17.4.1 In the event
of damage to or loss of part of the goods, the Insured may, in lieu
of part of the insured value, claim compensation for the necessary
costs incurred at the time of loss of repairing or replacing the
damaged or lost goods.
17.4.2 In the event
of damage to or loss of goods that form part of an insured entity,
the Insurer indemnifies for total loss if repair or replacement
is either impossible or inexpedient. Any residual value is taken
17.4.3 The Insurer
reimburses without deductible "new for old" the necessary costs
at the time the loss was noted of repairing or replacing used machines,
devices, equipment, vehicles and their components. If the current
value of the above equipment amounts to less than 40 % of its new
value, the reimbursement payable shall not exceed the current value.
If the sum insured
is less than the insured value, the Insurer is liable for the loss
and expenses only in the proportion of the insured amount to the
17.6 Sale of goods
before termination of the insured transport
17.6.1 After inception
of the policy, if the transport is abandoned or is not completed
for any reason and the Insurer is still obliged to indemnify, the
latter is entitled to request the Insured to sell the goods with
his assistance by private sale or public auction if the goods could
not be forwarded at reasonable cost or within an agreed period of
time. If the Insurer requests that the goods be sold, the sale shall
take place immediately.
17.6.2 In the event
of a sale, the Insured can demand reimbursement of the difference
between the sum insured and the proceeds from the sale. The same
applies if the goods in transit have to be sold as a result of a
loss claimed against the Insurer. 17.6.3 If the conditions
of sale require the seller to pay/deliver in advance, the Insurer
guarantees the payment of the purchase price, provided he has agreed
to the terms of sale.
of interest; saved costs
If an insured interest
or anticipated profit, increased value, customs duty or freight
or other costs do not materialise when the loss occurs, the corresponding
part of the sum insured is ignored when determining the extent of
the loss. The same applies to any costs saved on account of a loss
event having occurred.
17.8 Other recoveries
Any other recoveries
received by the Insured in respect of a loss are set off by the
Insurer against the indemnification payable.
18.1 If the Insured
requests payment of the sum insured, the Insurer may decide whether
or not the rights to the goods or the title to the insured goods
shall transfer to him upon payment of the sum. This right applies
only if exercised immediately by the Insurer upon notification of
the circumstances of the loss event.
18.2If the Insurer
elects subrogation, the Insured is obliged to minimise the loss
if the Insurer himself is unable to do so. The Insured is obliged
to disclose all information required to assert the rights, furnish
or make available any probative documents, as well as assist the
Insurer in recovering and evaluating the goods. The Insurer bears
the relevant costs and advance these upon request. The Insured receives
that part of the net proceeds from the sale that exceeds the sum
18.3 If the Insurer
does not choose subrogation, the Insured pays the Insurer either
the fair market value of the recovered goods or the net proceeds
from the sale.
of claims against a third party and the Insurer's rights to abandonment
by the Insurer
19.1 The Insurer
is, in the event of an insured loss, entitled to discharge himself
from all further liabilities by payment of the sum insured.
any discharge of liability, the Insurer nonetheless remains obliged
to indemnify the Insured for costs of averting or minimising the
loss or in repairing or replacing the insured object, properly incurred
before he was notified of the Insurer's intention to discharge himself
from liability by payment of the sum insured. This also includes
insured costs, which the Insured has undertaken to pay.
19.3 The Insurer's
right to discharge himself from liability by payment of the sum
insured ceases if the Insured fails to receive notification of this
intent within five working days of the Insurer becoming aware of
the loss event and its direct consequences.
19.4 Payment of
the sum insured does not earn the Insurer rights to the insured
20 Experts' procedure
If the cause or
extent of the loss is disputed, either party is entitled to request
their ascertainment by an expert.
20.1 In this case,
each party nominates an expert without delay. Upon naming an expert,
each party is entitled to request the other in writing to do the
same. If the second expert is not named within four weeks of receipt
of the written request, the requesting party is entitled to have
the expert named by the Chamber of Industry & Commerce (alternatively
by the Consulate General of the Federal Republic of Germany) of
the district in which the goods are currently located.
20.2 Before the
survey begins, the two experts appoint a third party as a representative.
If the parties cannot agree on a choice of representative, either
or both parties can request that the representative be appointed
by the Chamber of Industry & Commerce (alternatively by the Consulate
General of the Federal Republic of Germany) of the district in which
the goods are currently located.
20.3 The reports
produced by the experts contain all information which, depending
on the task at hand, is required to determine the cause of the loss
and to assess the extent of the indemnification due.
20.4 The experts
present each party with their findings simultaneously. If the findings
diverge, the Insurer forwards the reports to the representative
without delay. The representative then settles the disputed issues
within the bounds of the findings made by the experts and present
both parties with his decision at the same time.
20.5 Each party
assumes the costs of his own expert. Each party pays half the costs
of the representative. This applies even if the two parties agree
mutually on an experts procedure. If the Insurer requested the procedure,
he bears the entire costs of the proceedings.
20.6 The findings
of the experts or of the representative are binding unless it is
obvious that they deviate substantially from the facts of the case.
20.7 If the experts
or the representative are unable or unwilling to produce findings,
or if they delay proceedings unduly, different experts shall be
21 Limits of liability
21.1 The Insurer's
liability for losses occurring during the duration of the insurance
is limited to the sum insured.
21.2No. 21.1 applies
equally to any subsequent loss event. If payments have been made
to cover repairs or
replacement, or expenses and costs as per Nos. 22.214.171.124 and 126.96.36.199
have been incurred, or if the Insured has become obliged to pay
expenses of this kind, the sum insured is not reduced by the amount
of such payments and obligations.
21.3 This does
not affect No. 2.3.3 above.
22 Due date/payment
is obliged to indemnify within two weeks of the final assessment
of the loss. If the size of the
indemnity payment could not be finalised within a month of the loss
being reported, the Insured is entitled to demand part payment of
the minimum amount likely under the circumstances.
22.2 The date on
which the right to part payment arises is deferred by the length
of time by which ascertainment of the insured event and the extent
of the Insurer's obligation were delayed, if this delay was the
fault of the Insured.
must be paid in the currency of the sum insured.
23 Transfer of
claims for loss/damages
23.1 If the Insured
is entitled to claim against a third party, these rights transfer
to the Insurer upon indemnification of the Insured. In this event,
the Insured is obliged to provide the Insurer with the information
required to assert these rights, to submit - provided they are in
his possession - all certificates documenting the claim, and to
submit all papers - certified by a notary public - documenting the
transfer of rights. The Insurer shall bear these costs.
Section 1 applies
accordingly in case of general average. However, the Insured's claim
to General Average allowance will pass to the Insurer the moment
it arises if the latter is liable for sacrifices. If the compensation
exceeds the damages and expenses paid by the Insurer, the excess
is payable to the Insured.
23.2 If the Insured
waives his claim against a third party or his rights to safeguard
such a claim, the Insurer is released of liability insofar as he
might have made recovery via said claim or rights. 23.3
The Insurer is discharged of his obligation to indemnify insofar
as the Insured is unable to claim against a third party responsible
for the transport because his legal liability is limited beyond
the customary measure or excluded by contract. This does not apply
if the limitation or exclusion was beyond the Insured's control.
23.4 Even after
the right of recourse has transferred to the Insurer, the Insured
is obliged to minimise the loss, if need be, by withholding payments
such as freight. The Insured is obliged to assist the Insurer in
asserting the claim and to forward immediately any material information,
messages and documents. The Insurer shall bear the costs and make
advance payments upon request.
24.1 Claims arising
from the policy are subject to a limitation period of two years.
The limitation period commences at the end of the year in which
payment can be requested. In case of general average, the period
commences at the end of the year in which the Insured's contribution
is asserted by way of a general average adjustment which meets the
requirements laid down in No. 188.8.131.52.
24.2 If the Insured
has reported a claim to the Insurer, the limitation period is suspended
until the Insured has received a decision in writing from the Insurer.
25.1 If several
Insurers underwrite a policy, the latter are obliged to indemnify
for their respective shares only, i.e. not jointly. This applies
even if the single policy or insurance certificate was underwritten
by one Insurer on behalf of the others.
25.2 The terms
and conditions concluded with the Insured by the leading underwriter
are binding for the other Co-insurers. This weighs in favour of
the Insured when claims are settled. Without the agreement of each
individual Co-insurer, however, the leading underwriter is not authorised
to do any of the following:
- increase the
- include the
risks excluded under
- Nos. 184.108.40.206
- 220.127.116.11 (see No. 2.4.2)
- change the
- change the
terms of cancellation
In the absence
of the consent of the Co-insurers, the leading Underwriter is also
liable, by virtue of an unrestricted statement of declaration, for
the shares of the Co-insurers.
25.3 The leading
underwriter is empowered to litigate on behalf of the Co-insurers.
This applies equally to cases brought before courts of law and to
those before arbitration tribunals.
However, a verdict
against the leading underwriter for his part alone, or a settlement
made after litigation or any arbitration award shall be recognised
by the Co-insurers as binding for their quotas as well. If the leading
Insurer's share falls short of the amount in dispute, the Insured
is obliged - on the request of the leading Insurer or one of the
participating Insurers - to extend the action to include the second
and, where necessary, the third and other Insurers until the sum
is reached. If the Insured does not meet this request, Sentence
1 is void.
25.4 The existing
leading underwriter shall notify the Co-insurers immediately and
in writing of a change in leadership. This disclosure may also be
made by the Insured. In this case, each Co-insurer is entitled to
cancel his participation in the policy with four weeks' notice.
The right to give notice extinguishes if not exercised within one
month of the written notification of a change in leadership.
and statements received by the leading underwriter are regarded
as having been received by the Co-insurers as well.
26 Final clause
This policy is
subject to the laws of the Federal Republic of Germany. Unless otherwise
agreed, the provisions set out in Articles 1 to 80 of the VVG (within
the scope of Article 187 of said Act) apply on a supplementary basis.