LATIN INSURANCE TERMS
(Prepared for the Publications Committee by Mr. J. E. Meek, F.A.I.I. General Accident Assurance Corp., Sydney). Published in the Journal of the 'Incorporated Australian Insurance Institute’. Vol. 34.
We have added our own collection to this Library
A FORTIORI: Much more; with stronger reason,
A POSTERIORI: Prom the effect to the cause.
A PRIORI:. From the cause to the effect
ABANDONMENT: Where there is a constructive total loss under
a Marine policy the Insured may claim for a total loss and abandon the interest insured to the Insurer on giving notice of abandonment within a reasonable time. If the Insurer accepts the abandonment the loss Is payable and the Insurer becomes the owner of the interest insured and likewise faces the liabilities of such ownership. If the notice of abandonment, is rejected by the Insurer it avoids any liabilities connected with the interest but when the loss is proved, the Insurer has, of course, to pay it.
A breach of a condition precedent or a condition subsequent is said to go the root of the contract. This means that the contract will be void or voidable, so that it can, in effect, be destroyed either "ab initio" or from the breach of the contract.
ABROGATE To cancel, annul or repeal.
IN THE AGGREGATE - aken all together.
Aggregation Limit - usually in "Products" Liability. Meaning that the sum insured will be exhausted by each claim. The insured will be indemnified to the policy limit but not in aggregate beyond the limit of the policy in any one year
ABSOLUTE LIABILITY: A liability owed to another under special circumstances although injury is caused without negligence or intention., e.g... where occupier of land brings on to it something liable to do injury to others if it escapes there from. (Principle set out in Rylands v. Fletcher (1866) L.R.I. Ex. 265 and (1868) L.R. 3H.L. 360).
ACCESSORY Anyone concerned in a crime otherwise than as a principal.
ACCIDENT: An unlooked-for mishap or an untoward event which is not expected or designed, (Fenton v. Thorley ' (1903) A.C. 448), by the person injured thereby or involved (Trim Joint District School v. Kelly (1914) A.C. 667).
ACCORD AND SATISFACTION: An unilateral release of a party from his obligations in consideration of some payment or other valuable consideration by him to another party. The consideration is the “satisfaction” and the execution of an agreement is the “accord”.
ACTIO IN PERSONAM: A personal action in which it is claimed the defendant ought to do something for the plaintiff.
ACTIO IN REM: A real action, in which the plaintiff claims that, as against all the world, the thing in dispute is his.
ACTIO PERSONALIS MORITUR CUM PERSONA: “A personal action dies with that person”. This is a common law rule which prevented the representatives of a deceased person suing or being sued for a tort committed against or by the deceased in his lifetime. draw action by or against a person ceased with his death except in respect of damage to property. Such rule has beet abrogated by the Law Reform Acts of the various states except as regards defamation, seduction, enticement of a spouse, damages for adultery or loss of expectation of life (except in Queensland).
ACTION IN REM An action in the Admiralty Division of the Supreme Court which commences with a writ for the arrest of a ship (“the res”) as security for the guarantee of any judgment secured.
ACT OF GOD: That which happens due to an act of nature and without human intervention, such as an earthquake, and which “no human foresight can provide against and of which human prudence is not bound to recognise the possibility”, (Tennent v. Earl of Glasgow (1864) 2M. (H.L.) 22), in the locality concerned. Thus any natural phenomenon which might be expected to occur in a locality, no matter how infrequent, is not an Act of God, e.g. heavy rain.
AD COLLIGENDIL BONA:
"To concoct the goods." It is a form of grant
of administration of in estate which consists of perishable or precarious assets in respect of which regular administration cannot be granted Immediately.
ADDED PERIL: The exposure of an employee to a special danger for which he was not employed or expected to run by the nature of his employment and to which he 4xposes himself by acting outside the sphere of his employment.
AD HOC: "For this purpose”.
ADMINISTRATION BOND: The bond which must 'be given by a person to the Probate Division of the Supreme Court in most States before such person is granted letters of Administration which authorise him to wind up and distribute the estate according to law.
AD VALOREM: “According to the value." Refers to Duties which vary with the value of the matter taxed.
AGENT: One who acts for another. A “special” agent is one appointed for one particular purpose. A “general” agent is one whose authority extends to acts of a particular class, e.g. a banker or solicitor. A “universal” agent is one with unlimited authority. Agency may be created (a) “expressly” as by deed, by writing or verbally (b) “impliedly” by necessity (where person acts on behalf of another in an emergency when the principal cannot be contacted), or by “holding out” (leading others to believe agency exists by conduct or words) or by “status”, i.e. partners, or marriage, and (c) by “ratification” (approving of the action of another on the principal’s behalf after an authorised act is done.
AGGREGATE To amount to
AMBIET - Environment - Social
AMBIUITY – see listing under “CONTRA PROFOENTEM”
ARBITRATION: The settlement of a dispute by an agreement to refer it to the decision of one or more persons called arbitrators. After the arbitrator or arbitrators have made their decision (“award” it can only be appealed against on a question of law provided the arbitration has been properly conducted.
ASSAULT: The unlawful laying of hands on another person or an attempt or offer to do a bodily hurt to another combined with an apparent present ability and intention to do the act
ASSIGNMENT: The transfer of a right to a title or property by writing.
AVERAGE: In Marine Insurance is equivalent to "loss." Its Non-Marine meaning is the sharing of a lose by an Insured proportionate to the degree by which property is under-insured in relation to its value.
AVERAGE BOND: A document signed by consignee's of cargo whereby they agree to pay their share of any Generl Average contributions as may be found to be properly due from them in respect of their cargo.
BAILEE: A person to whom the possession of goods is given temporarily.
BARE LICENSEE: One who for his own purposes is permitted by the Occupier of property to enter therein as distinct from a trespasser.
BARRATRY: Any wrongful act wilfully committed by the master or crew to the prejudice of a shipowner or charterer.
BATTERY: The actual striking of another person or touching him in a rude, angry, revengeful or insolent manner.
BILL OF EXCHANGE: “An unconditional order in writing addressed by one person to another signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specific person, or to a bearer”. (Bills of Exchange Act 1909-1936 of Commonwealth).
BILL OF LADING: A document of title transferable by endorsement and delivery, which is signed by a shipowner. the ship's master or his agent. It acknowledges receipt of goods for shipment and sets out terms of carriage.
BONA FIDES: Good faith.
BOTTOMRY (BOND): A contract entered into by a shipowner or his agent under which a loan is advanced on the security of the ship and freight to be repaid with interest if the ship successfully terminates her voyage.
BREAKING: The forcing of an entry into a building by opening a fully closed door or window (whether exterior or interior) either before or after entry or by fraud, trick, the use of a skeleton key or through a chimney.
BURGLARY: The breaking and entering of the dwelling house of another in the night with intent to commit some felony therein. “Night” is defined by Statute as between 9 pm. and 6 am. It Can of course be anytime or any type of premises
CARRIER: One who transports the goods of another from one place to another for hire.
CAPTURE: In Marine Insurance the taking by force of enemy property in time of war.
CAUSA PROXIMA: An unbroken chain of events leading to some happening.
CAUSA PROXIMA NON REMOTA SPECTAUR
The immediate or proximate, not the remote, cause must be regarded
CAUSA REMOTA: The original cause of the cause, the remote, not the proximate or direct cause, in a chain of events. It indirectly causes a loss in that, if it had not come into operation, the direct cause would not have come into operation.
CAVEAT: A warning. An Entry made by a Court or Registry to prevent a certain step being taken without prior notice to the person entering the caveat.
CAVEAT EMPTOR: “Let the buyer beware”.
CESTUI QUE TRUST - the beneficiary (A Trustee is not a separate Legal Entity)
CONTRA PROFOENTEM - if there is ambiguity in the wording of a contract, the contract will be reconstructed against the parts responsible for its authority
CHOSE IN ACTION: A right to proceed at law to secure payment of a sum of money due or for pecuniary damages for a wrong or for the non-performance of a contract.
C.I.F.: (Cost, Insurance & Freight): A contract for the sale of goods whereby the seller has to ship the goods described within the time stipulated, to procure a bill of lading or other contract of affreightment for the delivery of the goods at the destination agreed upon, to insure the goods on the terms normal to the trade for the benefit of the buyer, to make out an invoice and forward to the buyer such invoice, policy and bill of lading. The buyer is bound to take them up if in order.
CIVIL COMMOTION: An insurrection of the people for general purposes, not amounting to a rebellion but more than a riot.
CIVIL LAW - The Body of Law concerning PRIVATE rights.
CIVIL WAR: Internal organised warfare for a public purpose.
COLLUSION: The actions of two apparently hostile persons acting together to injure some other person or deceive a Court.
COMMON CARRIER: “A person who undertakes for hire to transport from a place within the realm to a place within or without the realm, the goods or persons of all such as choose to employ him; a person who is ready to engage in the transportation of goods as a business and not as a mere casual occupation pro hac vice (i.e. for the occasion). A man who does not ply regularly for hire to a particular destination, but lets out his vehicle by the day or by the job to go to any destination ordered by the carrier is not a common carrier”. (Watkins v. Cottell (1916) 1K. .10). In the absence of special agreement the common carrier is an insurer of goods carried except for loss caused by Act of God or the Queen's enemies. The Carriers' Act of each State permits a limitation of liability for undeclared valuables and per parcel.
COMMENSURATE - Equal to, Balanced
COMMON LAW The law of a Country or state based on CUSTOM, and the decisions
COMMON EMPLOYMENT: A common law rule whereby an employer is not liable to his employees for injuries due to the negligence of a fellow-employee in the course of the same employment, provided the employer showed no lack of care in selecting his employees and the employer was not personally negligent. Now overridden in all States by Statute.
CONCEALMENT: A wilful act of non-disclosure.
CONDITION: “A provision in a contract, grant, conveyance or will providing that the beginning, vesting, recission or a modification of an estate or interest in property or of a personal obligation shall depend upon an uncertain event which may or may not exist or happen." (Webster). In Insurance, a condition is a term of the policy which requires certain things to be done or complied with before or after certain events or which modifies the operative portion of the Policy. Conditions may be either implied (good faith from all parties, insurable interest, the existence of the property or interest insured and its capacity for identification) or actually expressed in the Contract. Expressed conditions may be either Conditions Precedent to the happening of an event or Condi- tions Subsequent which are to be fulfilled after the happening of a specific event.
CONSIDERATION: Some right, interest, profit or benefit or some forbearance, detriment, loss or responsibility given, suffered or undertaken.
CONSORTIUM (Consortium et servitum): The society and services of a wife.
CONSTRUCTIVE TOTAL LOSS: In Marine Insurance there is a Constructive Total Loss where the subject matter insured is reasonably abandoned on account of its actual Total loss appearing to be unavoidable or because it could not be preserved from actual total loss without an expenditure which would exceed its value when the expenditure had been incurred. (Marine Insurance Act 1909 Sec. 66).
CONTRA PROFERENTEM: (Verba charterum fortius accipiuntur contra proferentem): “The words of deeds are to be interpreted most strongly against him who uses them”. A rule of construction whereby in the event of an ambiguity it is to be read against the party who drafted the document.
"CONTRA PROFERENTUM" RULE It holds that the person drawing up a legal document is responsible for any defects in it and cannot profit from such defects (since insurers have prepared a policy any ambiguity in its phraseology will be contrived against the insurer, that is, in favour of the insured)
CONTRIBUTION: The payment of a share of liability which has been carried by one or some only of a number equally liable.
CONTRIBUTORY NEGLIGENCE: A common law principle, now modified by the Law Reform legislation, whereby if two persons contribute to an accident or damage, neither can recover against the other if the negligent acts of each are so simultaneous that neither had a reasonable opportunity to avoid the accident or damage. (Davis v. Mann (1892) 10M & W546 and The Volute (1922) I.A.C. 129).
CONVULSION OF NATURE: (A phrase that has been described in the N.Z. Supreme Court as “too vague, indefinite and ambiguous to have any effect in so formal a document as a policy of insurance”).
CONNIVANCE Passive co-operation, as by consent in wrongdoing
CONNIVE 1] to pretend not to see or look, 2] to co-operate
CROSS LIABILITIES: A method of computing the respective liabilities of shipowners in respect of ships that have been in collision provided there has been no limitation under the Imperial Merchant Shipping Act.
DAMAGE – FEASANT: Doing damage.
DE FACTO: In fact.
DE JURE: By right.
DEMISE: A grant of land or other hereditaments connected therewith.
DEMURRER: An objection to legal action formalities that the latter show no good cause of action or defence.
DEVIATION; An intentional change in the proper course of a ship’s voyage which, unless for the purpose of saving life or property, relieves the Insurer of liability under a Marine voyage Policy unless the policy provides otherwise. (Section 51 of Marine Insurance Act 1909).
DEVISE: Making of a gift of land or other realty by a will.
DILIGENT Persevering and careful in work. Done with careful steady effort
DISCLAIMER: A renunciation.
DISCOVERY: Obtaining of information on oath from a party to legal proceedings.
DISBURSEMENTS: A Marine term used to describe any interest apart from the customary items of “hull and machinery”, “cargo”, or “freight”.
DISTRAIN: To seize goods by way of distress. (Which see).
DISTRESS DAMAGE – FEASANT: The right of the occupier of land to seize cattle or other things trespassing on his land and to retain them until compensation is paid.
DURESS: Constraint by force or threats.
EFFICACY – Producing or capable of producing the desired effect.
EJUSDEM GENERIS (Of the same kind): A rule of construction whereby words of a general nature following words of a particular meaning are construed to mean the same king as the particularly defined words.
EMBEZZLEMENT: The stealing by an employee of property belonging to his employer before it has reached the possession of the latter.
EMBRACERY: An unlawful attempt to influence or instruct a juryman.
ENDORSEMENT: Normally something written on the back of a document. In Insurance a variation of the contract affixed to the policy has been held in Australia to be an endorsement. (L’Union Insce. Co. v. Klinker Knitting Mills 59 C.L.R. 709 at page 728). Once a policy has been issued it cannot be endorsed to vary the terms during its currency except with the consent of all parties.
ENEMY ALIEN: A foreigner whose country of origin is at war with the country of which he is not a naturalised subject.
ENTRY: Occurs if any portion of a person’s body enters a building or if any instrument or device is passed into it, no matter to how slight an extent.
EQUITY (Natural Justice): An additional body of rules formulated to supplement the rules and procedure of the common law.
ESTOPPEL: A rule of evidence by which the wilful conduct of one party procludes him from denying the facts are not otherwise than his conduct has let another to believe to the latter’s detriment.
ET SEQ: Add those following.
EX ABUNDANTI CAUTELA (from an excess of caution): Words are often added to a document to make a matter clear beyond all doubt.
EXCESS: A deduction of a fixed amount to be borne by an Insured in respect of each claim.
EJUSDEM GENERIS "of the same nature or Nature"
EX GRATIA "As an act of Grace" OR "As of favour"
Given or granted as a favour – where no legal obligation exists
EXPRESSIO UNUS EST EXCLUSIO ALTERIUS - "the express mention of one person or thing is to the exclusion of another"
EXPLOSION: “A violent bursting or expansion with noise following a sudden increase or decrease in pressure”. (Webster). Some policies contain special definitions, e.g. Boiler Explosion Policy – “the sudden and violent rending or tearing apart of a Boiler”, etc.
F.C. & S. (Free of capture and seizure): A clause attached to a Marine Policy to exclude loss caused by capture, seizure, arrest, restraint or detainment, war, revolution, civil strife or piracy.
FELONY: A crime more serious than a misdemeanour and for which the penalty is at least penal servitude. A serious crime - FELONIOUS
FIDUCIARY RELATIONSHIPS - solicitor/client, director/clerk - under influence due to relationship
FIRE: Ignition of anything not intended to be ignited (Harris v. Poland, L.B. 1941).
FLOOD: “A body of water rising, swelling and overflowing land” (Webster) not normally underwater. It does not seem to have been legally defined in respect of insurance.
FOREIGN INVASION: A warlike or hostile entrance upon the domain of another by forces employed by a foreign power. It implies a State of War between belligerent states. The term when applied to loss refers to that caused by the invaders or defenders in repelling them.
FLOTSAM: Goods lost by shipwreck or cast overboard and which remain afloat.
F.P.A. (Free of Particular Average): A form of Marine cover which does not pay for partial loss of goods unless during the voyage the carrying ship is burnt, sunk or stranded, or in collision.
FRANCHISE: A proviso in a policy whereby no claim under a fixed limit is payable.
FRAUD: A deliberate deception to gain an unfair or unlawful advantage.
FUSION: Melting or dissolution by heat or melting together. In Insurance parlance particularly refers to breaking down of an electrical circuit by a short.
FORTUITOUS - Happening by Chance; Accidental, Chance
GARNISHEE: To attach a debt. More properly a person to whom an official order is given for the payment of moneys due to another to be paid to a third party.
GENERALIA SPECIALIBUS NON DEROGANT - "special things Derogate from General things"
GENERAL AVERAGE: “Any extraordinary sacrifice or expenditure voluntarily and reasonably made or incurred in time of peril for the purpose of preserving the property imperilled in the common advantage”. (Sectioin 72 (2) of the Marine Act 1909). Origins in the law of shipping not marine and refers to the loss or damage intentionally caused to save the entire loss
HIGHWAY ROBBERY: Stealing or taking from the person, on a public way or in his presence, of property with such force or terror as to induce the person unwilllingly to part with his property.
HOLD HARMLESS - A modern insurance term for Subrogation. See details under Subrogation.
HOMICIDE: The killing of a human being.
HONOUR POLICY: A policy that is not legally enforceable in event of loss but it is assumed nevertheless will be honoured.
HOSTILITIES: Acts of war.
HOUSEBREAKING: The breaking and entering in or out of a dwelling house other than in the night and with the intent of committing some felony therein or a building other than a dwelling either during the day or night.
HOUSEHOLD: Those who dwell together in the same premises and form one family. A sister has been held to be a member of her brother’s household although he was not a householder. (English v. Wetsern (1939) I. All E.R. 345).
HOUSEHOLDER: An occupier of premises responsible for the rent and outgoings connected therewith.
HYPOTHECATION: A charge over property as security for a debt where the property still remains in the debtor’s possession.
IMPLEAD: To take proceedings against a person.
IMPLODE - To burst inwards - IMPLOSION
INDEMNIFY: To make good a loss which another has suffered.
INEVITABLE ACCIDENT: An occurrence which could not be avoided by the person involved or causing it, notwithstanding the exercise of the proper care required under the circumstances.
INFANT: A person under the age of 21 years.
IN EFFICACY – see Efficacy
INHERENT VICE: Loss or deterioration which arises solely from a principle of decay or corruption inherent in the thing itself.
INTER ALIA among other things
INTERROGATORIES: Written questions put by one party in an action to be answered on affidavit by the other on matters relating to the action. See the appropriate Rules of the Court.
INVITES: One who enters the property of another upon a matter in which the occupier has a material or pecuniary interest.
INVITOR: One who grants permission, express or implied, to enter upon his premises to a person for a matter of material or pecuniary interest to the occupier.
INSURABLE INTEREST: An implied condition in all enforceable insurance policies that the person insured will obtain some advantage from the property insured or may suffer prejudice in connection therewith. (Lucena v. Crawford (1806)). The Marine Insurance Act 1909 in Section 11 provides a person has an insurable interest “where he stands in any legal or equitable relation to the adventure, or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof, or may incur liability in respect thereof”. If the claimant under a policy has no insurable interest the policy may be avoided by the Insurers. If the latter waive it, it cannot be raised between persons claiming the policy proceeds (Hadden v. Bryden (1899) per Welford on Accident Insurance at page 14 (1923 ed.)).
INSURRECTION: A rising of the people in open resistance against the established authority with the object of supplanting it. It is a stage between civil commotion and rebellion.
INUNDATE 1] to cover completely with water; flood, 2] to overwhelm - INUNDATION
JETSAM: Goods which are thrown into the sea to lighten a ship in danger and sink and so remain under the water.
JETTISON: The throwing overboard of goods to lighten a vessel for safety as in a storm or to prevent capture.
JOINT TORTFEASORS (Joint Wrongdoers): Persons who, at Common Law, are jointly and severally liable for the one wrongful act as in principal agent, vicarious liability or joined in the same action. Law Reform Acts now permit contribution between them or apportionment of damages according to their share of the blame.
LACHES: Negligence or unreasonable delay in enforcing a right.
LAGAN: Jetsam from a sunken ship and which has been tied to a buoyant body for purpose of later recovery (see Sir Henry Constable’s case (1601)).
LARCENY: The fraudulent taking and carrying away, without the consent of the owner and without a claim of right made in good faith, anything capable of being stolen, with intent at the time of such taking to permanently deprive the owner of the use thereof. “Larceny by a servant” occurs when a person under a contract of service steals any property belonging to or in the possession of his master or employer after such property has come into the actual or constructive possession of the employer (vide
LATENT DEFECT: A hidden defect in any plant or machinery or other equipment which could not have been discovered or noticed by any reasonable examination.
LEADING QUESTION: Question which suggests to a witness the answer he is to give.
LIBEL: Defamation by means of writing, printing or other permanent record.
LICENSEE: One who enters upon the property of another with the express or implied permission of the occupant for a purpose other than that of mutual business.
LICENSOR: The grantor of a license.
LIEN: The right to hold another’s property as security for the performance of an obligation.
LOOT: The act of plundering, especially in a conquered or sacked city. It implies the existence of a state of war, although used in a more general sense to refer to widespread plundering following upon the occurrence of any extensive damage or a catastrophe.
LOSS: An object which cannot be found after a reasonable time has elapsed and diligent search, has been lost. (Holmes v. Paine (1930) 2 K.B. 301).
LOST OR NOT LOST: A phrase in a Marine Policy designed to overcome the implied condition that the interest insured must be in existence at time the policy attaches if the contract is to be enforceable. Section 12 of the Marine Insurance Act 1909, states:-
“Provided that where the subject matter is insured ‘lost or not lost,’ the assured may recover although he may not have acquired his interest until after the loss, unless at the time of effecting the contract of insurance the assured was aware of the loss, and the insurer was not”.
MALA FIDES (Bad Faith): An action which implies fraud, collusion or wrongdoing.
MALFEASANCE: Doing of an unlawful act.
MALICIOUS ACT: A wrongful act done intentionally without just cause or excuse. (Bromage v. Prosser 4B. & C 255).
MANDAMUS (We Command): A high prerogative writ issued in the Queen’s name to a party on his application to the High Court or State Supreme court and which is addressed to somebody or person to compel the latter to perform some public duty if no other form of redress is available. An “Action for Mandamus” however, is one to order a defendant to fulfil some duty in which the plaintiff is interested.
MANIFEST: A list of a ship’s cargo with details of marks, number, contents, shipper and consignee of each packet.
MANSLAUGHTER: Unlawful homicide but not amounting to murder (where the element of wilful intent must be present).
MARITIME PERILS: Perils related to navigation upon the sea, thus: - perils of the seas other than the ordinary action of the wind or waves, war, fire, pirates, thieves (excluding clandestine theft or theft by crew or passengers), capture, seizure, restraints and detainments of princes and peoples, jettison, barratry and other similar risks (Section 9-Marine Insurance Act 1909).
MARKET OVERT: (Open Market): Refers to a doctrine related to Sale of goods (vide Sale of Goods Act) whereby any goods sold in such market are binding on all concerned so that even stolen goods are acquired by a purchaser if acting with good faith, with a good title. In Australia markets overt is applied to any shop except in New South Wales where there is no market overt (vide Section 4 (2) of Sale of Goods Act 1923-1937).
MARTIAL LAW: “The suppression of ordinary law and the temporary government of a country or parts of it by military tribunals”. (Dicey). A state of martial law is proclaimed by the Crown authorities or by military authorities.
MATERIAL FACT: In insurance is something which “if known at the time when the negotiations took place, would have reasonably affected the minds of prudent and experienced insurers in deciding whether to accept the insurance or in fixing the rate of premium to be charged if the insurance was accepted” (Welford).
MAYHEM: The violent deprivation of a member of the person of another, such as an eye or limb.
MENS REA (Guilty Mind): An evil intent or appreciation of the wrongfulness of an act done by the wrongdoer or in which he has taken part.
MILITARY LAW: The law of Courts Martial.
MILITARY POWER: Implies the use of military forces by the Crown against organisations, whether external or internal, and also acts of foreign enemies or of subjects of the crown engaged in internal warfare.
MISDESCRIPTION: An error, mistake or misstatement in the description of any property, interest or liability. If the subject matter of a policy is so inadequately described that it cannot be identified with precision the policy may be voided.
MISFEASANCE (Wrongdoing): The improper performance of a lawful act.
MISREPRESENTATION: Conduct or a statement which conveys an incorrect impression. If such was intentional it is a “fraudulent misrepresentation” or if an error made accidentally in the honest belief it was the truth it is an “incorrect misrepresentation”. If the misrepresentation is one relative to a material fact and made before the contract is completed a policy may be voided by the Insurer. Likewise if it is made a condition precedent that the proponent warrants the truth of his answers then even an innocent misrepresentation will void the policy. A fraudulent misrepresentation involves “a wilful misstatement or a blameworthy reckless and careless assertion or omission of which an honest man, giving ordinary attention to the matter in hand, would not have been guilty”. (Vide page 39 footnote (b) of Welford’s Accident Insurance 1923 ed.). In Victoria the Instruments (Insurance Contracts) Act 1936 provides that no contract of insurance shall be voided by reason only of misrepresentation unless the representation was fraudulently untrue or material to the risk of the Insurer.
MURDER: The crime of unlawful homicide with malice aforethought.
MUTATIS MUTANDIS: The necessary changes being made.
MUTINY: “Concerted revolt against the rules of discipline or the lawful commands of a superior officer” (Webster).
NEGLIGENCE: The failure to exercise the care that the circumstances demanded from the person concerned to enable him to avoid causing bodily injury or damage to the property of another, the circumstances being such that a reasonable man would realise such other person or his property might be injured unless such care was so exercised. The degree of care required is that which would be exercised by a reasonable man in the same circumstances.
The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which is a prudent and reasonable man would not do.
Simply neglect of some care which we are bound to exercise towards somebody.
Negligence is therefore a breach of the duty to exercise that standard of care for the safety of others which a reasonable person would exercise in the circumstances.
Special duties of care:-
* When involved in dangerous undertakings to others you take full responsibility for the consequences - also known as "absolute" or "strict" Liability.
NON DISCLOSURE: Failure to disclose the existence of a particular fact which ought to be disclosed. It implies a keeping back or suppression and not a mere inadvertent omission to disclose it.
NON EFFICACY -See EFFICACY
NONFEASANCE: Neglect or failure to carry out something that ought to be done, such as failure to repair a highway. Local authorities are not liable for acts of nonfeasance as regards highway repairs but are liable for acts of misfeasance.
NONSUIT: Withdrawal of a case from a jury by a Judge and who gives a verdict for the defendant.
NOSCITUR A SOCIIS (It is known by its neighbours): Meaning may be gathered from its context. "one is known by the company one keeps" or "words of a feather flock together"
NOVUS ACTUS INTERVENUS - a New and Intervening Cause
NUISANCE: The wrongful interference with the enjoyment of occupation of land or the exercise of rights.
OBITER DICTUM: An observation by a Judge on a legal question suggested by a case before him but not arising in such a manner as to require decision or form part of the judgment. A saying by the way (observation by Judges). It has no binding authority. Plural dicta
ONUS OF PROOF (Burden or responsibility of proving): “Proof is never anything more than probability. It is for the Court to say whether the probability is so slight… that nothing more results than a surmise; or whether the probabilities are so strong and so one-sided as to amount to legal proof”. (Nobel’s Explosives Co. v. British Dominions General Insce. Co. (1918) W.C. & Ins. Rep. 106 at p. 108). Proof of facts lie on those who stand to gain therefrom. An Insured has the burden of proving a prima facie case of loss. The onus of disproving it then shifts to the Insurers who must prove it conclusively. If however, the excepted peril forms an integral part of the definition of the peril insured against then the Insured must prove the loss was not caused by the excepted peril.
PARLANCE - Buzz words, expression, phrase, jargon
PARTICLUAR AVERAGE - Partial Loss. A Marine phrase which means partial loss. (See With Average”).
PARTICULAR CHARGES:> See “Sue & Labour Charges”.
PECUNIARY - Fiscal, Monetary, Financial, Economic
PERILS OF THE SEAS: “The fortuitous accidents or casualties of the seas. It does not include the ordinary action of the wind and waves. (Second Schedule of Marine Insurance Act 1909).
PILFERAGE: A clandestine stealing (De Rothschild v. Royal Mail Steam Packet Co. (1852) 7 Ex. 734 at p. 742).
PILLAGE: To strip off valuables with open violence, to plunder, usually associated with warfare.
PIRACY: An act of robbery on the seas within the jurisdiction of the Admiralty, not being an act of war.
PIRATE: One who commits an act of piracy, including passengers who mutiny and rioters who attack a ship from the shore.
PLEADINGS: Written statements delivered alternatively by the parties to an action until the issue is joined such as Statement of Claim, defence, reply, rejoinder, as per local Rules of Court.
POLIZZA Italian word meaning "Insurance"
POWER OF ATTORNEY: A formal document which authorises another person to act for the person giving the power.
P.P.I. (Policy Proof of Interest); Refers to a policy which is accepted as the proof of the Insured’s insurable interest in the subject matter insured, without further evidence thereof. Particularly is used in connection with Marine policies but Section 10 of the Marine Insurance Act 1909 makes such policy void.
PRIMA FACIE: At first view.
PROCESS: The Writs or Summons issued under the jurisdiction of a Court to give compulsory effect to its jurisdiction.
PRO HAC VICE: “For the occasion”. An appointment which is for a particular occasion only.
PROTEST: A document signed by the Master and one or more of the officers of a vessel executed before and so attested by a Notary and which gives a detailed narrative of the circumstances of a casualty.
PROVISO: A clause in a deed, policy or other instrument and which commences “Provided that”.
PROXIMATE CAUSE: The immediate proximate cause (causa causans) as distinct from the remote cause (causa sine qua non) which only indirectly causes a loss or event.
PROXIMATE CAUSE THE DOCTRINE OF
In considering the losses and contingencies which are covered by a policy of insurance where there has been a sequence of events, the doctrine of "Proximate cause" has been defined as the active cause which sets in motion a train of events which brings about a natural result, traceable in a direct line to the first cause, without the intervention of any external force, beginning and operating from an independent source.
PUBLIC POLICY: The interests of the State or community. Certain acts which are held to be against public policy cannot be enforced or recognised. Thus it is not possible to insure against statutory penalties or to insure enemy subjects in time of war.
QUANTUM MERUIT: :As much as he has earned”. (The assessment of what is reasonable remuneration)
QUI FACIT PER ALUIM FACIT PER SE - "Means that one who does a thing through another does it oneself.
QUID PRO QUO: “Something for something”. Consideration. Exchange of promises
RATIO DECIDENDI - the underlying Legal Principle
R.D.C. (Running Down Clause): A clause attached to a Marine Hull policy and which provides indemnity up to 75% of the value of the vessel insured, for damages awarded against the Insured in respect of any collision with any other ship or vessel, excluding claims in respect of the cargo, freight, removal of obstructions under Statutory powers or injury to harbours, piers and the like and loss of life or personal injury.
REBELLION: Implies an organised armed resistance by the whole or part of the populace to the rules and government of its own country and open or determined defiance or resistance to the authority of the controlling forces.
RECTIFICATION: If a policy or other instrument is not in accordance with what has been agreed, it can be returned for correction. If the error is not noticed before acceptance, an action in equity may be commenced to have the document rectified.
REINSTATEMENT: The replacing of what is lost or repairing what is damaged. Also the practice of restoring a policy to its original sum insured after a payment of loss has reduced the indemnity available.
REMOTE CAUSE: The indirect cause of a cause (causa sina qua non).
REPRESENTATION: Statements of fact made during negotiations up to time of final acceptance of a contract.
REPUGNANT - Repellent, invidious, Obnoxious
RES GESTAE: All the facts so connected with a fact as to form one continuous transaction.
RES IPSA LOQUITUR (The thing speaks for itself): A rule of evidence whereby the circumstances are such that prima facie loss or injury appears to have been due to the negligence of the defendant. The latter may disprove the apparent negligence by giving a satisfactory explanation of the matter, in which event the onus of proving negligence reverts to the plaintiff.
RES JUDICATA (A thing adjudicated): A defence to an action based on the principle the same matter has already been litigated and a final award or judgment given.
RESPONDEAT SUPERIOR (Let the principal answer): A master is responsible for the acts of his employee committed in the course of the employment. If done in the employer’s interests, even if against his instructions, the employer is liable.
RESTITUTIO IN INTEGRUM: Restoration to the original position.
RESTRAINT OF PRINCES: Political or executive acts of a Sovereign Power or authority, which it has power to enforce, which in the case of Marine insurance frustrates a voyage and so causes loss of the insured interest. It includes embargoes and blockades but not riots or ordinary legal processes such as in the Admiralty Jurisdiction of Courts.
RETRO - A combining form meaning backwards, back, behind
RETROSPECT - A looking back on or thinking about the past
- RETROSPECTIVE - In reviewing the past
- RETROACTIVE - Applying to the preceding period (Ex: a retroactive pay increase)
-PROFESSIONAL INDEMNITY policies have a retrospective or retroactive date of cover. Usually this is unlimited (excluding known claims) however some policies have to be unlimited by extension
RIOT: A disturbance of the peace by three or more persons assembled together of their own authority, with an intent to mutually help and assist one another against anyone opposing them in the execution of some enterprise of a private nature and later actually executing or attempting such purpose and in a violent and turbulent manner so as to alarm at least one person of reasonable firmness and courage. No reading of a Riot Act is essential before a riot can be claimed to have occurred.
ROBBERY: “The stealing or the taking from the person or in the presence of another, of property of any amount, with such a degree of force or terror as to induce the party unwillingly to part with his property”. (R. v. Hickman).
SACK: To storm and plunder.
SALVAGE: The saving of property from a peril (especially perils of the seas). Also refers to the compensation awarded to those who voluntarily assist in saving a ship or her cargo. Word also applies to the goods or property actually saved in whole or part.
SALVAGE CHARGES: Expenses incurred in protecting or recovering insured goods to avoid further loss from insured perils.
SCIENTER (Knowledge): An allegation that a person has done a thing knowingly or has prior knowledge as of a dangerous propensity of an animal.
SCOTTO SERITTO - underwritten
SEAWORTHY: When a ship is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure (Section 45 (4) of Marine Insurance Act 1909).
SHORT TERM - To reduce the pre arranged term of a policy. This is usually applied where
þ The insured has only part paid a policy and the U/W payment terms have now been breached so we short term (reduce the period of cover) and bring back the expiry date to a date sufficient to match the amount paid thus far
þ The insured may want a policy to fall due on common date such when other policies are due - This is generally referred to a "common date" period
SLANDER: Defamation by spoken word or gesture.
STARE DECISIS: “To stand by decided matters”. The “sacred principle” of English Common Law by which precedents are authoritative and binding and must be followed unless they contravene the ordinary principles of Justice.
STATUS QUO: The state in which things are or were.
STAY OF PROCEEDINGS: Suspension of proceedings in an action.
STEALING: Loose term for larceny, embezzlement, robbery and the like.
STIPULATION: A term or condition in the contract which is not a condition precedent or subsequent unless clearly to be stated to be such.
STOPPAGE IN TRANSITU: The right which an unpaid vendor has to resume possession of goods sold on credit and to retain them until paid if goods have not been finally delivered but are in transit.
STORM: A violent natural disturbance of the atmosphere. Perhaps with a wind force of at least 25 m.p.h. but more probably over 32 m.p.h. (Force 7 of Beaufort Scale).
STRANDING: Contact by a ship with the sea bottom, rock, etc. whereby the vessel is held fast for a time. Has effect of converting F.P.A. covers to W.P.A.
STRICT LIABILITY (Absolute) - Virtually a reverse roll in that the insured is automatically Liable unless evidence to the contrary. The insured has to prove innocence
SUBPOENA: A writ requiring a person to be at a specified place and time under a penalty (the subpoena).
SUBROGATION: In insurance the doctrine that on payment of a loss the Insurer is entitled to stand in the place of the Insured and to have transferred all the latter’s rights and remedies as if a total indemnity is given or otherwise to share in these rights.
· This means - If the insurer is to Indemnify or compensate you for a loss then they are entitled to take your place for any opportunity to recover their losses.
· This means they have the right to subrogate (recover) in your name against another and you must comply with any reasonable requests that they make.
SUBTERRANEAN FIRE: Fire from natural causes originating below ground.
SUE & LABOUR CLAUSES: A section of the Standard Marine policy additional to the cover otherwise provided. It is a separate extension which permits the Insured, his agents or assignees to “defend, safeguard and recover” the interest insured in the case of any loss or misfortune and to incur expense for such purpose without prejudice to the rights of either Insured or Insurer, notwithstanding that such expenses are payable by the Insurer.
SUICIDE: Self murder. Being a crime there is always a presumption against death being so caused unless there is proof that it was so caused.
SUPPRESSIO VERI (Suppression of the truth): Deliberate concealment or non-disclosure, in effect a falsehood by imcompleteness.
TEMPEST: A violent natural disturbance of the atmosphere accompanied by strong winds.
TERRA FIRMA - Firm or Solid Ground
THEFT: Loose term for larceny or stealing.
THIEVES: In Marine Insurance does not cover clandestine theft or a theft committed by any of the ship’s company, whether crew or passengers. Often described as referring to “assailing thieves” i.e. those who use force.
TIME POLICY: Used in Marine Insurance to describe a policy for a definite period of time.
TORT (A wrong): “A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation”. (Salmond).
TORT A "Tort" is an Act of or omission which gives rise to a right of redress. Examples of Tortious conduct include Negligence, Treason & Defamation
TORTFEASOR: A wrongdoer.
TOTAL LOSS Actual and Constructive
There is an actual total loss where the subject matter is destroyed.
TRESPASSER: One who goes on land without invitation of any sort and whose presence is either unknown to the occupier or owner or, if known, is practically objected to. (See Addie v. Dumreack (1929) A.C. 371).
TUMULT: See Civil Commotion.
UBERRIMA FIDES: Of the fullest confidence, i.e. The Doctrine of UTMOST GOOD FAITH
ULLAGE: The amount by which a container is not full; wastage or deficiency as by evaporation.
ULTRA VIRES (Beyond the power): Any action in excess of legal authority.
USURPED POWER: Refers to an organisation in open rebellion which has assumed governmental authority and made decrees, disobedience of which is made a punishable offence.
VALUED POLICY: A Policy in which the value of the insured interest has been agreed upon between the parties from inception. In event of total loss the agreed value falls to be paid and in the event of partial loss, unless the policy otherwise provides, a pro rata payment is made, e.g. a 25% damage to the interest entitles the Insured to be paid 25% of the sum insured thereon.
VEHEMENT - Full of or showing very strong feeling, intense - VEHEMENTLY
VERBA CHARTERIS FORTIUS ACCIPIUNTER CONTRA PROFERENTEM: See Contra Proferentem.
VICARIOUS LIABILITY: Liability at law for the acts of another such as principal for agent, master for servant.
VOID: Of no legal effect, a nullity.
VOLENTI NON FIT INJURIA (that to which one consents cannot be an injury): If a person knowing the risk nevertheless, expressly or impliedly assents to take it, then if he is injured cannot sue as for a tort, e.g. taking part in a boxing contest. It is necessary to prove both knowledge (scienter) and willingness to take the risk (volens).
WAIVER: The giving up or abandoning some right or benefit either expressly or by conduct which leads the other party to believe such right or benefit is renounce or disclaimed.
WAR: A state of conflict between sovereign powers supported by force of arms.
WARRANTY: A guarantee or assurance as applied to insurance where an Insured warrants the truth of any statement or existence of any circumstances or the performance of any matter; such must be strictly and literally true or fulfilled or the policy may be avoided by the Insurer. The materiality thereof is not relevant except in Victoria (vide Instruments (Insurance Contracts) Acts).
WILFUL ACTS: A deliberate action as opposed to the unintentional or accidental.
WITH AVERAGE (W.P.A.): A term used in Marine to indicate a policy that covers partial losses of the insured interest caused by the perils covered by the standard form of policy.
WRIT: A document in the Queen’s name and under the seal of the Crown, a Court or an officer of the Crown, commanding a person to do or forebear from doing some act.
WRONG: A violation or infringement of a right.
YORK-ANTWERP RULES: Rules for adjustment of General Average drawn up for International use at Conferences held at York in 1864, Antwerp (1877) Liverpool (1890) and Stockholm in 1924.