n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Die aard en omvang van die 'alle risiko' -polis in die seeversekeringsreg




It is well known that 'all-risk' policies do not actually cover all perils. The liability of the insurer in such cases is consequently not absolute. Certain 'self-evident' exclusions, in fact, exist in the case of the liability of the insurer in an 'all risk' policy. Despite the fact that the insured procured an 'all-risk' policy, an insurer would not be liable to compensate the insured for damages resulting from all occurrences. It is crucial that the precise content and meaning of terms and especially 'wear and tear', 'leakage', 'breakage', 'inherent vice', 'latent defect' and 'defective packaging' be clear. It appears that the South African law of insurance blindly follows the English law. As a result, the potentially problematic interpretation incidental to English law is incorporated into South African insurance law. An example of this problem situation is the current interpretation of 'inherent vice' and 'defective packaging'. In English law, these terms are interpreted as being the same. It is submitted, however, that the defective packaging of a product should not be construed as an inherent vice of that product. The implication of this submission is not that an insurer should be held liable, but that the combination of these concepts as having the same meaning is not technically correct in law. In similar vein, the South African courts also follow the English courts in their superfluous distinction between 'normal' and 'abnormal' wear and tear, as well as 'normal' and 'abnormal' leakage.


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