1961-HKRS28-8-28_Part01 — Page 46

Liabilities to

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(2) Where the insurer is liable for salvage charges the extent of his liability must be determined on the like principle.

74. Where the assured has effected an insurance in express terms third parties. against any liability to a third party, the measure of indemnity, subject to any express provision in the policy, is the amount paid or payable by bim to such third party in respect of such liability,

General pro- visions as

to measuNE

75, (1) Where there has been a loss in respect of any subject matter not expressly provided for in the foregoing provisions of this of indemnity. Ordinance, the measure of indemnity shall be ascertained, as nearly as may be, in accordance with those provisions, in so far as applicable to the particular case.

Particolar

average warranties.

Successive

losscs,

(2) Nothing in the provisions of this Ordinance relating to the measure of indemnity shall affect the rules relating to double insurance, or prohibit the insurer from disproving interest wholly or in part, or from showing that at the time of the loss the whole or any part of the subject matter insured was not at risk under the policy.

76. (1) Where the subject matter insured is warranted free from particular average, the assured cannot recover for a loss of part, other than a loss incurred by a general average sacrifice, unless the contract contained in the policy be apportionable; but, if the contract be appor- tionable, the assured may recover for a total loss of any apportionable part.

(2) Where the subject matter insured is warranted free from particular average, either wholly or under a certain percentage, the insurer is nevertheless liable for salvage charges, and for particular charges and other expenses properly incurred pursuant to the provisions of the suing and labouring clause in order to avert a loss insured against. (3) Unless the policy otherwise provides, where the subject matter insured is warranted free from particular average under a specified percentage, a general average loss cannot be added to a particular average loss to make up the specified percentage.

(4) For the purpose of ascertaining whether the specified por. centage has been reached, regard shall be had only to the actual loss suffered by the subject matter insured. Particular charges and the expenses of and incidental to ascertaining and proving the loss must be excluded.

77. (1) Unless the policy otherwise provides, and subject to the provisions of this Ordinance, the insurer is liable for successive losses, even though the total amount of such losses may exceed the sum insured.

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(2) Where, under the same policy, a partial loss, which has not been repaired or otherwise made good, is followed by a total loss, the assured can only recover in respect of the total loss:

Provided that nothing in this section shall affect the liability of the insurer under the suing and labouring clause.

clouse,

78. (1) Where the policy contains a suing and labouring clause, Suing and the engagement thereby entered into is deemed to be supplementary to labouring the contract of insurance, and the assured may recover from the insurer any expenses properly incurred pursuant to the clause, notwithstanding that the insurer may have paid for a total loss, or that the subject matter may have been warranted free from particular average, either wholly or under a certain percentage.

(2) General average losses and contributions and salvage charges. as defined by this Ordinance are not recoverable under the saing and labouring clause.

(3) Expenses incurred for the purpose of averting or diminishing any loss not covered by the policy are not recoverable under the suing and labouring clause.

(4) It is the duty of the assured and his agents, in all cases, to lake such measures as may be reasonable for the purpose of averting or minimizing a loss.

Rights of insurer on payment.

79. (1) Where the insurer pays for a total loss, either of the whole, Right of or in the case of goods of any apportionable part, of the subject matter subrogation. insured, be thereupon becomes entitled to take over the interest of the assured in whatever muy remain of the subject matter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject matter as from the time of the casualty causing the loss.

(2) Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires no title to the subject matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured in and in respect of the subject matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Ordinance, by such payment for the loss.

80. (1) Where the assured is over-insured by double insurance, Right of each insurer is bound, as between himself and the other insurers, to contribution. contribute rateably to the loss in proportion to the amount for which he is liable under his contract.