Following English law, South Africa law recognises that the right of subrogation allows the insurer to use the insured’s name to sue any third party legally liable for the insured loss. The right or rights of the insured are not ceded or assigned to the insurer, unless the parties specifically agree to do so.
South Africa does not have a dedicated marine insurance act. Unless stated otherwise in the policy, a South African court will apply the Roman-Dutch law of marine insurance to any marine insurance claim.
The general rule is that the insurer will only be entitled to rights of subrogation once the insured has been indemnified “in full” for its insured loss. On payment of indemnity, subrogation happens without the need for any formalities. However, it is usual for the insurer to request that the insured sign a letter of subrogation, confirming not only that the insurer may proceed in the name of the insured, but also undertaking to provide such assistance to the insurer as may be required. Care must be taken, though, not to demand of the insured anything that exceeds the insured’s obligations under common law, or which might otherwise have been undertaken in the contract of insurance. If the insured refuses to permit the insurer to use his name in a claim against the third party, the insurer can bring proceedings to compel him to do so, by bringing an action against both the insured and the third party.
The insurer is obliged to recover all losses suffered by the insured, not just the insured losses. This often leads to issues regarding who is to bear the costs of any subrogated recovery action, and how any settlement proceeds should be apportioned. Under South African law, the insured will have the first take of any settlement proceeds, up to the point where its losses have been fully indemnified. In practice, however, the insured and the insurer will agree on the apportioning of both the costs of recovery and the recovery itself – usually on a pro-rated basis.
Under South Africa law, the right of subrogation is a substantive issue which should be governed by the law of the insurance contract. This is where Chinese law will normally kick in if the insurance contract is subject to Chinese law. It is worth noting that some Chinese insurance policies incorporating the commonly used Institute Clauses (which state that “this insurance” is subject to English law and practice) does not necessarily mean that the insurance contract is governed by English law – English law and practice will only apply to the terms of the Institute Clauses. This issue remains unresolved. It is therefore imperative that insurance policies clearly set out the choice of law issues.