第4章保险合约的解释.doc

第四章 保险合约的解释1 序言保险合约与所有其他的合约一样，保险人与受保人之间有了争议，最重要的就是怎么去解释保险合约的有关条文或去协调所有有关但看来有矛盾的条文去给出整体的解释。涉及协会货物条文（Institute Cargo Clauses），由于它是由精通业务的专业人士在深思熟虑后拟定出来的，所以就估计会比较少争议。这道理等于是很著名商会或者机构（例如是国际商会或BIMCO）拟定的格式合约。但不表示这种协会货物条文或标准条文不会产生争议并导致诉讼，而经过诉讼被发觉或被法院判定是标准条文有缺陷后，拟定条文的机构有可能会相应的作出改善。此外是随着业务的发展与改变，协会货物条文与标准格式合约本来是十分完善也会变的有欠缺，因此也是需要随着时代去改进。反正这方面的工作是周而复始。即使是拟定得比较好的协会货物条文，它毕竟只是一个保险合约中部分去合并的内容。而在一个货物保险合约，在今天的做法就是在第一章介绍的开口/预约保单（open cover）。这里就会有很多千变万化的条文去针对受保人的业务要求与保险人愿意承担的风险。这些条文都没有标准格式或文字，通常只是由双方当事人自己去拟定或在涉及保险经纪人的时候，由保险经纪人去作出建议。这一来，一份货物保险合约本质上与租约的拟定是十分接近。而显然这种条文是更加容易产生争议，需要法院或者仲裁庭去作出解释，这种案例实际上是不少。去解释合约，大家是可以参阅笔者于2007年所著由法律出版社出版的合约的解释一书。在这里只去一提该书有提到法院或仲裁庭去解释合约条文，主要的目标是去客观找出双方订约的意图。这一个做法以前是主要从双方所选择的措辞与文字中去找出它们所能表达出来的意图（contractual intention as expressed）。换言之，合约怎么样写就怎么样去解释，而且是比较严格的解释。但最近的30/40年来，英国法院在这方面有了改变。现在解释商业合约的侧重点是在尽量找出商业上看来是合理的解释，而且尽量考虑订约时双方都了解的背景（surrounding circumstances）与语境（factual matrix）。这种解释合约的做法，可称为是“目的解释”（purposive construction）、“本质解释”（contextual construction）、“商业解释”（commercial construction）或“自由解释”（liberal construction）。在该书也介绍了这一个改变或趋势被明确下来的几个最主要贵族院先例以及有关的案情：Charter Reinsurance Co. Ltd. v. Fagan (1997) AC 313, HL; Mannai Investments Co. Ltd. v. Eagle Star Life Assurance (1997) AC 749; Investors Compensation Scheme v. West Bromwich Building Society (1998) 1 WLR 897; BCCI v. Ali (2001) 1 UKHL 8与The “Starsin” (2003) 1 Lloyds Rep. 571。当然在这种做法下，还是要注意客观合理的解释仍要与双方约定的合约措辞与文字套得上。换言之，法官与仲裁员并非是订约方，不能去自说自话更改双方同意的合约条文。所以现在解释合约条文，在强调客观合理之余，还是要与合约的措辞与文字之间找到平衡点。去显示保险合约的解释也是同样道理可去举近期的先例The “Resolute” (2009) 1 Lloyds Rep. 225，它不是关于海上货物保险而是船壳保险，但道理是一样。该保险合约中，保险标的是一艘名为“Resolute”的渔船，它投保了12个月的定期风险。在该保险合约中是有一条保证条文如下：“Warranted Owner and/or Owners experienced skipper on board and in charge at all times and one experienced crew member.”。（保证船东也就是本案的原告或有经验船长在所有时间内在船上负责，与另有一位有经验的船员。）从字面上看，保证条文是需要在任何时间渔船上必须有两位船员（其中一位是船东或有经验船长）。事实上该渔船上共有4个人，就是船东作为船长，另加上3位船员。在2006年12月10日，该渔船出海捕虾后回来Fleetwood港口基地去把捕获的虾从渔船上卸下。期间，船东去了岸上的渔业办公室办事，但船上的3位船员也陆续离开该渔船。其中一位是回家，另一位去200码（yards）以外的酒吧喝啤酒，而最后一位船员在不久后也去了同一家酒吧。稍后时间，船东接到电话说该渔船发生火灾，这导致了船东与其他的船员赶紧赶回去。而消防员最后将火全部熄灭，但这已经导致了该渔船的推定全损，因为估计修理费用比保险金额更高。该火灾应该是发生在渔船的厨房，实际起火地点与原因就没有办法肯定。能够肯定的是起火的时候船上是没有人的，从表面看来船东是违反了保证条文。保险人的解释显然就是指有关的保证条文说明必须在所有时间内有船长在船上负责（on board and in charge at all times）。但船东的抗辩就是这样的解释不合理与不符合渔船的做法，比较合理的解释是渔船在出海与航行时才是有关保证条文所要去针对的情况。而在该先例中，涉及有关的保证条文怎么样去作出解释，上诉庭的Clarke大法官就介绍了法院对该保险合约条文的解释就是采用了上文提到的“目的解释”与“商业解释”说：“It is to my mind possible to over-elaborate the relevant principles. Indeed there was a tendency to do so during the argument in this appeal. They are the principles relevant to the construction of contracts in general and of warranties in insurance contracts in particular. As I see it, any clause in a contract must be construed having regard to its context within the contract, which must in turn be set in its surrounding circumstances or factual matrix. The general principles are to be found in a number of comparatively recent cases, notably Investors Compensation Scheme Ltd. v. West Bromwich Building Society 1998 1 WLR 897, where they were summarised by Lord Hoffmann at pages 912H to 913E as follows: (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.(2) The background was famously referred to by Lord Wilberforce as the matrix of fact, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. (See Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. 1997 AC 749)(5) The rule that words should be given their natural and ordinary meaning reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Neviera SA v. Salen Rederierna AB 1985 1 AC 191, 201: if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.I should add that in BCCI v Ali 2001 UKHL 8, 2002 1 AC 251, at 39 Lord Hoffmann said that, in referring to absolutely anything in his proposition (2) he meant anything which a reasonable man would have regarded as relevant. He added that there is no conceptual limit to what can be regard as relevant and then said: But the primary source for understanding what the parties meant is their language interpreted in accordance with conventional usage: we do not easily accept that people make linguistic mistakes, particularly in formal documents. I was certainly not encouraging a trawl through background which could not have made a reasonable person think that the parties must have departed from conventional usage.Lord Steyn put the general position thus in Sirius Insurance Co. v. FAI Insurance 2004 UKHL 54, 2004 1 WLR 3251 at 19: There has been a shift from literal methods of interpretation towards a more commercial approach.He then referred to the well-known passage from Lord Diplocks speech in the Antaios case quoted by Lord Hoffmann as part of his proposition (5) and to a statement of his own from the Mannai Investment case, which was also referred to by Lord Hoffmann, and concluded that the tendency should therefore be against literalism.As Lord Hoffmann expressly noted in BCCI v. Ali, none of this is to say that the language is not important. As Lord Mustill put it in Charter Reinsurance v. Fagan 1997 AC 313 at page 384C-D: Subject to the use of a specialist vocabulary the inquiry will start, and usually finish, by asking what is the ordinary meaning of the words used.I should also refer to this further proposition, which was relied upon by the judge at 26, which is stated by Lord Mustill at page 388C, after referring to Lord Reids well-known statement in Wickman Machine Tool Sales Ltd. v. Schuler AG 1974 AC 235, 251 that the more unreasonable the result, the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they should make their meaning clear: This practical rule of thumb must however have its limits. There comes a point at which the court should remind itself that the task is to discover what the parties meant from what they have said, and that to force upon the words a meaning which they cannot fairly bear is to substitute for the bargain actually made one which the court believes could better have been made. This is an illegitimate role for the court.”。在进一步探讨英国高院与上诉庭怎么样解释The “Resolute” (2009) 1 Lloyds Rep. 225先例中的保证条文前，可以去介绍另一个案情看来十分接近的先例：The “Newfoundland Explorer” (2006) Lloyds Rep. IR 704。该先例涉及的是一艘游艇，有关的保证条文是“Warranted vessel fully crewed at all times”。由于是一艘游艇，停泊的时候根本不涉及任何工作，所以游艇上工作人员需要更少，只有1位船长。但该船长暂时离开该游艇回他15公里外的家里，就在此期间，游艇因为发电机发热而发生火灾。Gross大法官判是所有时间或24小时都需要至少1位船员在游艇上是不合理与不实际的解释，否则该船员或者船长非常短暂离开游艇去检查船舶的缆绳也会变了是违反保证。结果判是该保证条文的解释不适用在该船员暂时离开游艇，例如是由于紧急事故需要他离开，或是暂时离开为了履行他的职务（例如为游艇购买必需品）或相关活动，说：“The warranty obliged the defendant to keep at least one crew member on board the vessel 24 hours a day, subject to: (i) emergencies rendering his departure necessary; or (ii) necessary temporary departures for the purpose of performing his crewing duties or other related activities.”。现在回来先例The “Resolute” (2009) 1 Lloyds Rep. 225，在一审Mackie大法官判是该渔船船东破坏了保证条文。相比The “Newfoundland Explorer”，首先就是两条保证条文在文字上并不相同。更重要的是大家的背景也不一样，一艘是游艇，另一艘是有工作人员的渔船。反正，在上诉庭的判决，Clarke大法官是以以下的做法去作出介绍：“In the present case the judge（指Mackie大法官）held at 24（保险合约中的保证条文） that the natural and literal meaning of the words is that the owner or owners experienced skipper must be on board at all times and that there is no ambiguity except, perhaps, as to whether the one experienced crew member must also be on board and in charge at all times, which he said was a consideration irrelevant to this dispute. As to context, he focused at 25 on the parties awareness that the insured vessel was a trawler with a small crew, spartan living accommodation and the ability to fish at sea for only a limited number of days a year. However, he held that those considerations did not shift the natural meaning of wording as explicit as this, save to the extent that they bear on the extent of the qualification to the literal meaning of on board at all times which he correctly said that both sides accept is required. The judge identified Mr Nolans （渔船船东代表大律师）argument as being that the clause should be read to include but only while the vessel is underway or working and Mr Baileys （保险人代表大律师） argument as being that the limitations should only be those recognised by Gross J in The Newfoundland Explorer, namely limitations restricted to emergencies requiring departure from the vessel or for the purpose of carrying out other crewing duties. He also noted Mr Baileys alternative argument that if working was accepted as a limitation, the vessel was working because at the time of the fire the generator was in operation. The judge held at 26 that the qualification to the literal wording should only be that required by commercial common-sense and not a means to arrive at what might be thought to be a more advantageous bargain. In that regard he quoted the extract from Lord Mustills speech in the Charter Reinsurance case at page 388C which I have quoted above. The judge limited the qualification to the circumstances suggested by Gross J and held that, although the owner and crew were reasonably ashore when the fire broke out, their absence was due neither to emergency nor a requirement of crewing duties. He further held that the clause was not ambiguous and, although he thought that the clause was in a sense inconsistent with some of the standard terms of the contract, that was of little weight. For these reasons he held that the claim failed.”。但该案例去了上诉庭，第一审的判决被推翻。上诉庭对有关保证条文的解释作出了截然不同的结论，认为渔船船东没有违反。其中是Clarke大法官认为保证条文主要是针对航行的风险才会是需要一位有经验的船长（Owner and/or Owners experienced skipper）。Clarke大法官是这样说：“The critical aspect of the language of this clause is to my mind Warranted Owner and/or Owners skipper on board and in charge. It was no doubt contemplated that the owner would be capable of acting as skipper, as was indeed the case. Moreover, I note in passing that the proposal form makes it clear that Mr Lee Pratt (这是渔船船东的儿子), the appellants son, is an experienced skipper. However that may be, the warranty requires that the owner or his skipper be on board and in charge. The natural inference from that is that an experienced skipper was to be on board and that the reason for that is that underwriters wanted protection from risks which a skipper would be needed to guard against. That suggests to me that the primary purpose of the warranty was to protect the vessel against navigational hazards. That is I think underlined by the reference to and one experienced crew member because, as I see it, the warranty was for the owner or skipper to be on board and in charge and for a second person to be on board at the same time but not of course in charge. That second person was to be an experienced crew member. Thus the underlying purpose of the warranty, read as a whole, was to protect the vessel in circumstances in which at least two members of the crew, ie the skipper and one other, could be expected to be on board. The judge disregarded the last part of the warranty on the basis that its meaning was irrelevant to this dispute. For my part, I would not accept that that is so. For the reasons I have given, the existence and meaning of the last part of the warranty help to construe the warranty as a whole.As I see it, the principal time when at least two members of the crew including the skipper would be required was when the vessel was being navigated, including when she was manoeuvring. I can see that it would probably be held to apply when the vessel was, say, landing her catch, when again there might well be a need to have the skipper and a crew member on board. The question is how far the expression at all times should be qualified. As the judge recognised and, as Mr Bailey correctly concedes, the expression cannot be given its ordinary and natural (or literal) meaning. In this case the clause seems to me to be ambiguous because it does not make clear or give any indication as to what the extent of the qualification should be.”。最后，Clarke大法官也去根据另外一个著名的解释合约原则“越不合理的约定就越要写清楚”，这在笔者所著的合约的解释第22页有详细介绍，包括去节录了Reid勋爵在先例Schuler v. Wickman (1974) A.C. 235名言：“The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear.”。Clarke大法官认为保险人如果要求该渔船在不航行的时候还是必须有两位船员在船上（一位是有经验的船长），就必须去明确写明例如是“at all times”去加上批注是“即使船舶不在航行中，而只是靠挂在泊位，是一艘没有动力的船”以使得对该保证条文再也找不出另外一种解释的措辞或文字。Clarke大法官是这样说：“In these circumstances, in accordance with the principles summarised above, the clause should be construed contra proferentem, that is against the insurer. At the time the crew left, the vessel was safely tied up alongside, as must happen very often. Sometimes, no doubt, the generator was left running and sometimes it was not. If the insurer wanted the owner or skipper and an experienced crew member on board whenever the vessel was left with the generator still running it should clearly have so provided. So too, if the insurer wanted them on board whenever the vessel was left, it should clearly have so stipulated. It did not.”。希望通过上述先例，大家可以明白解释合约的困难。另外，还有在合约条文的意思起争议的时候怎么样正确运用解释规则去作出希望是正确的解释。可以说准确解释保险合约的重要性在本书多处地方都有提到，例如在第六章第4.5.3段。1906年英国海上保险法附表一的“解释保单规则”（Rules for Construction of Policy）与今天的保险合约条文的解释关系是不大。这些解释规则是去针对已经过时的S.G.保单内的文字。但由于这是立法的一部分，所以有关一些目前保险合约还是有的措辞或文字，这些解释仍然适用。例如针对海上风险（perils of the seas），海盗（pirates），暴力盗窃（thieves），船员的蓄意恶行（barratry），等。2 承诺性保证条文（promissory warranty）2.1 一般合约条文的分类保险合约中的保证条文或保证与一般合约的保证条文，虽然在名称上是相同，但违反的后果却是有很大不同。针对一般的合约解释，普通法在先例Hong Kong Fir Shipping v. Kawasaki (1961) 2 Lloyds Rep. 478之后是将合约条文分为3大类：（一）条件条文（condition）、（二）中间条文（intermediate 或 innominate terms）与（三）保证条文（warranty）。条件条文的违反（即使是轻微的违反）是可以导致受害方有权终断合约并索赔损失，而保证条文的违反，受害方只能索赔金钱上的损失。至于中间条文就要看个案的不同本质与事实，如果违反的后果严重，它的救济是与违反条件条文一样。今天的合约条文绝大部分是属于中间条文而不会归类为条件条文。这是有一个重要原因，如英国法律是尽量支持合约的履行而不支持合约的终断。另在现实中有许多合约条文的违反会是可轻可重，非要在每次事件中看它会造成的后果严重性才能决定恰当的救济。类似的分类（但没有去针对中间条文）也在针对货物买卖的1979年货物销售法的Section 11(3)说：“Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract; and a stipulation may be a condition, though called a warranty in the contract.”。2.2 1906年英国海上保险法对“保证”的定义可以说违反一般合约的保证条文的后果应该是比较轻微，救济也是仅仅限于金钱上的赔偿。但针对保险合约，地位就很不一样了，因为它的重要性十分显著，因为是在1906年英国海上保险法中有明确规定。首先，是保证的定义在Section 33：“A warranty. means a promissory warranty, that is to say, a warranty by which the assured undertake that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the existence of a particular state of facts.”。为了与一般合约的保证条文能够更明确作出区分，所以在本段的标题与接下去的内容会把保险有关的保证条文称为是“承诺性保证条文”（promissory warranty）。承诺性保证条文在保险合约内的作用是受保人向保险人作出承诺会或者不会在保险期间内做某些事情，或是承诺在保险期间会或不会发生或者出现某些事情，或是承诺会进行一些保险人要求的事情，等等。在订约自由下，这种承诺性保证可以是以各种不同的措辞与文字出现，根据保险人的要求与受保人愿意去作出的承诺而定。针对海上货物保险，这种明示与默示的承诺性保证不是太多，也没有很多的先例。其中在先例Overseas Commodities v. Style (1958) 1 Lloyds Rep. 546，保单中有一条明示承诺性保证说：“marked by manufacturers with a code for verification of date of manufacture.”。2.3 两种承诺性保证：明示与默示2.3.1 明示承诺性保证有关明示承诺性保证，其实就是指保险合约中以条文明确规定受保人承诺一些什么保证与保证什么的内容。这在订约自由下，明示承诺性保证可以是千变万化。在1906年英国海上保险法的Section 35，针对明示承诺性保证是规定如下 ：“(1) An express warranty may be in any form of words from which the intention to warrant is to be inferred. (2) An express warranty must be included in, or written upon, the