Even where there is no specific agreement to indemnify, e.g. as between the engineer and contractor, a party who pays more than his just and equitable share of the compensation having regard to his responsibility for the damage may by statute recover a contribution or complete indemnity from any other person liable (p. 404). In neither case, of course, is the right of the injured third party to recover all his damages from one or more of the parties liable affected. l
The Unfair Contract Terms Act 1977 now may affect indemnity clauses—p. 431.
Insurance. As an added protection to the employer the contractor is bound to insure against his liability. Insurance is for the benefit of the contractor, because his liability to indemnify the employer under cls. 20, 22 and 24 remains whether or not he is insured, and for the benefit of the employer to avoid the danger of having to try to enforce a right of indemnity against an insolvent contractor. m
The contractor’s insurance usually will be set out in more than one policy or in several sections in one policy, and there must be no gaps. The fact that a policy is called “Contractors’ All Risk” does not in the insurance world mean that all risks are covered, and the policy must be considered carefully. It is common to see policies issued to contractors which do not comply with these clauses. Exclusions from cover constantly give trouble; they are not always in the “Exclusions” part of the policy, but may be hidden in the “Conditions” section or, e.g., in the limitation to accidental damage (p. 106, N. 6).
The key on pp. 360–3 tries to set out the insurance requirements in a way that will help the contractor to arrange cover and the engineer to check both the contractor’s and employer’s policies. However, it may be very difficult to be sure that the pieces for what is often an insurance jigsaw are all present and dovetail together precisely. The engineer is not bound to be an expert on insurance, and should have any doubtful points clarified in writing direct by insurers or brought to the employer’s notice for legal advice if necessary.
It has indeed been argued that, particularly as these clauses require approval of policies by “the Employer”, the engineer has no duty to play any role at all in connection with insurance. But the engineer is no more an expert on legal matters than he is on insurance matters, yet there are many situations in which it is undoubtedly his duty to take preliminary precautions on behalf of the employer, subject to having any difficult points finally dealt with by a lawyer (p. 390). In particular the engineer is no less qualified to require production of policies by the contractor and to check any departure in policies from the requirements of these clauses than to advise on the preparation of contracts, as he is specifically required to do by cl. 2C of the A.C.E. service agreement (p. 375). Indeed if the engineer does not have a reasonable knowledge of insurance matters, is he competent to recommend the employer to accept and include unaltered in the main contract the terms of these insurance clauses? n
If there are any special risks attached to particular works or anyone has doubts at any time as to whether a particular risk is covered, the parties should confirm the cover with insurers in writing or take out a special policy, and argue later about who is liable for any extra premium.
网友评论