Amin Rasheed Shipping Corporation v. Kuwait Insurance Company

It is the strongest form of implied choice, and the one most defensible against the standard objection that implied intention is a fiction. The inference here is not about anyone's state of mind; it is about the impossibility of any other reading.

A Liberian company resident in Dubai insured a ship with a Kuwaiti insurer. There was no express choice of law and no clear implied choice either way.

English law of marine insurance was applied, on the terms of the contract and the surrounding circumstances. The decisive fact was that at the time of making the contract Kuwait had no law of marine insurance.

Step one — start from the terms. The parties used a form of policy that only one legal system could make sense of.

Step two — test the alternative. The other candidate system had no such law at all. A contract cannot be governed by a law that does not exist for the subject matter.

Step three — hence the inference. The conclusion is not that the parties subjectively chose English law; it is that no other reading is possible. That is why this case answers the objection that the search for an implied intention is a polite fiction.

It opens: Give an example of an implied choice of law — and it is the example to use when the question asks you to defend the doctrine.

Learn it as one of a set of three. Tzortzis v. Monarch Line: the chosen tribunal implies the law of its seat, on qui elegit judicem elegit jus, even against the objectively closest system. The Assunzione: where the indications are evenly balanced, performance decides. This case: where the parties cannot have chosen anything else, the surrounding circumstances supply the answer.

Use it against the standard criticism. This course records the disadvantage of the doctrine frankly — where the law is not expressly stated, intention has to be presumed or imposed on the parties, which introduces uncertainty. Delhi Cloth and General Mills Co. v. Harnam Singh goes further and says that imputing an intention where we know there was none is unnecessarily artificial, and that the courts really apply an objective test. This case is the one in which the inference is genuinely an inference.

Draw the professional moral, which is the one this course draws: certainty is bought where the parties buy it by an express clause and nowhere else. Draft the clause.

It does not decide that the law of the insurer's country can never govern a policy; the decisive fact was the absence of any marine insurance law there at the time.