Gibbs v Mercantile Mutual Insurance (Australia) Ltd [2003] HCA 39

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, HAYNE AND CALLINAN JJ

IAN WAYNE GIBBS & ANOR APPELLANTS

AND

MERCANTILE MUTUAL INSURANCE

(AUSTRALIA) LTD RESPONDENT

Gibbs v Mercantile Mutual Insurance (Australia) Ltd

[2003] HCA 39

5 August 2003

P63/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation:

N J Mullany with P J Hannan for the appellants (instructed by Unmack & Unmack)

D F Jackson QC with G R Hancy for the respondent (instructed by Srdarov Richards Burton)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Gibbs v Mercantile Mutual Insurance (Australia) Ltd

Insurance – Contracts – Insurance cover against liability to third parties arising from use of marine pleasure craft for commercial paraflying – Where paraflying to be conducted in estuarine waters – Whether policy a contract to which Marine Insurance Act 1909 (Cth) applied – Whether policy a contract of marine insurance.

Words and phrases – "contract of marine insurance", "incident to marine adventure", "maritime perils", "sea", "ship".

Insurance Contracts Act 1984 (Cth), s 9(1)(d).

Marine Insurance Act 1909 (Cth), ss 7, 8, 9.

Marine Insurance Act 1906 (UK).

Merchant Shipping Act 1894 (Imp).

1. GLEESON CJ. The respondent issued a policy of insurance which indemnified the appellants if, by reason of their interest in the vessel "Lone Ranger", they incurred legal liability to third parties. The question in this appeal is whether the policy was a contract to which the Marine Insurance Act 1909 (Cth) applied. If the answer to that question is in the affirmative, two things follow. First, the contract was not one to which the Insurance Contracts Act 1984 (Cth) applied[1]. Secondly, and in consequence, the failure of the appellants to give timely notice of an occurrence giving rise to such third party liability was fatal to any entitlement to indemnity, and could not be relieved under the provisions of the Insurance Contracts Act. 2. The facts are set out in the joint judgment of Hayne and Callinan JJ. The Marine Insurance Act applies to contracts of marine insurance, subject to certain presently immaterial exceptions (s 6). A contract of marine insurance is defined as a contract whereby the insurer undertakes to indemnify the assured against marine losses, that is to say, losses incident to a marine adventure (s 7). The definition is elaborated in ss 8 and 9.