2.1 The legal sources
Insurance contracts are governed by the Norwegian Insurance Contract Act 1989 (ICA).
Casualty insurance is regulated in ICA part 3. The rules are as a starting point mandatory, i.e. the provisions can not be deviated from to the detriment of the party deriving a claim against the company from the insurance contract.(1) ICA § 2-3 sub paragraph 1. The ICA may, however, be deviated from for insurance concerning substantial risks and for insurance of commercial activity mainly performed abroad.(2) ICA § 2-3 sub paragraph 2 cf. § 1-3. The act does not define the concept of substantial risk, but this is mapped out in regulations.(3) FOR-2022-03-04-323 § 1. For the purpose of this article the main point is that insurance for vessels(4) Regulation § 1 sub paragraph 1 letter a with reference to insurance class 6. and for enterprises of a certain size(5) Regulation § 1 sub paragraph 1 letter c with reference to insurance class 3, 8, 9, 10, 13 and 16, but qualified to a certain size with regard to assets according to the latest balance sheet, sales according to the latest annual report and accounts and number of employees. is outside the mandatory scope of the legislation. This means that for big companies, vessels and commercial activity mainly performed abroad, the ICA may be departed from.
Even if the ICA is not mandatory for these types of insurance, it will, however, function as background legislation for issues not regulated in the insurance contract between the parties. Commercial enterprises on land in Norway are normally insured based on ICA even in cases where the act may be deviated from. Rules on co-insurance is provided in ICA part 3 chapter 7.
Marine insurance on the other hand, are based on an agreed document, the Nordic Marine Insurance Plan 2013 (NP), that functions more like private legislation than a contractual document.(6) See on the NP, Wilhelmsen/Bull p. 26 ff. The NP is revised every third or fourth year and the current version is Version 2023.(7) Printed at The Plan (nordicplan.org) However, this article is mainly based on Version 2019(8) Printed at NordicPlan being the version in use when the article was written. Version 2023 was amended to avoid the result in the Ocean Victory case, cf. section 5 below.
The relevant provisions NP includes most types of marine insurance, hereunder hull insurance which was the relevant insurance in the Ocean Victory case. NP includes provisions on co-insurance in chapters 7 (for mortgagees) and 8 (for other third parties).