4.1 Introduction and overview
It appears that the common starting point in Norwegian and UK law is that co-insurance protect the co-insured against a subrogated claim from the insurer if the co-insured is liable for damage to another assured’s property, unless the co-insured has caused the damage through breach of provisions in the insurance contract.
The question is if this indirect liability protection also effects the underlying liability between the parties to the charterparty (or other contracts as the case may be) and thus bars a subrogated claim against a liable party that is not part of the co-insurance scheme. According to the Ocean Victory case para 139, “This is a matter of construction”, but the core reasoning for the majority decision appears to be based upon general English law principles of co-insurance developed over several years.(1) See for instance para 55-57, 98-99, 114-115. This approach seems to be similar to the Norwegian approach. In the following, the majority’s interpretation of cl. 12 is addressed in 4.2 and the relationship between cl. 12 and 13 in 4.3.