Quyết định 33/2004/QD-BTC

DECISION

PROMULGATING THE CONSTRUCTION AND INSTALLATION INSURANCE RULES AND CHARGE TABLES

THE MINISTER OF FINANCE

- Pursuant to the Law on insurance business No. 24/2000/QH10 dated December 09, 2000;

- Pursuant to Government’s Decree No. 42/2001/ND-CP dated August 01, 2001, detailing implementation of a number of articles of the Law on insurance business;

- Pursuant to Government’s Decree No. 77/2003/ND-CP dated August 01, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

- Pursuant to the Government’s Decree No. 52/1999/ND-CP dated July 08, 1999, promulgating regulation on investment and construction management and Decree No. 07/2003/ND-CP dated January 30, 2003, amending and supplementing the Decree No. 52/1999/ND-CP dated July 08, 1999, promulgating regulation on investment and construction management;

At the proposal of Director of Insurance Department,

DECIDES:

Article 1. To promulgate together with this Decision on the construction insurance rules and charge tables and installation rules and charge tables.

Article 2. On the basis of solvency assurance, the insurers may take initiative in adjusting increase and decrease of insurance levels in range of 25% in comparison with the charge tables specified in this Decision conforming to the signed insurance conditions and terms.

Article 3. For works with typical characteristics not yet been mentioned or mentioned insufficiently in the rules and charge tables promulgated by the Ministry of Finance, the insurers and the insurance buyers are allowed making agreements on insurance conditions, insurance premiums so as to conduct timely insurance for the works and must report to the Ministry of Finance for monitoring and management.

Article 4. This Decision takes effect 15 days after its publication in the Official Gazette.

Article 5. Director of Insurance Department, The Chief of office of the Ministry of Finance and heads of relevant units shall inspect and supervise implementation of this Decision.

CONSTRUCTION INSURANCE RULES

(Promulgated together with Decision No. 33/2004/QD-BTC dated April 12, 2004, of the Minister of Finance)

Article 1. Insurance objects

These insurance rules are applicable to the following insurance objects, provided that those insurance objects have been stated in insurance contracts, including:

1. Construction works including public construction works, houses, industrial, transport, irrigation and energy works, and other works;

2. Construction equipment in service of construction activities;

3. Construction machinery in service of construction activities;

4. Installation proportions in service of and/or constituting a section of construction works;

5. Assets available on and within construction sites and under ownership, management and control of the insured;

6. Liability to a third party.

Article 2. The insurance buyer and the insured

In this insurance rules, the insurance buyer and the insured are construed as follows:

1. The insurance buyer is investor (or project management board). In case where insurance premiums have been included in bid-winning prices, contractors shall purchase insurance. The insurance buyer may also concurrently be the insured.

2. The insured includes organizations and individuals having assets or civil liabilities insured under insurance contracts.

Article 3. Insurance contract

Insurance agreements between the insurance buyer and the insurers are presented under form of insurance contracts. An insurance contract includes these insurance rules, request for insurance, certificate of insurance and terms amending and supplementing insurance contract (if any).

Article 4. Request for insurance

When requesting for insurance, the insurance buyer must send request for insurance made according to provision in Annex 1 (enclosed with these insurance rules) to the insurer. Request for insurance is an integral part of insurance contract.

Article 5. Certificate of insurance

Certificate of insurance is proof of conclusion of insurance contract and is an integral part of insurance contract. Certificate of insurance is made according to the form set in Annex 2 (enclosed with these insurance rules).

Article 6. Insurance duration

Insurance enterprises' responsibility shall begin from commencement of the works, or when the insured items as stated in insurance contracts are unloaded at the construction site, although it is different to the commencing time of insurance stated in insurance contract.

However, construction insurance contracts only really effect after the insured paid insurance premium stated in insurance contract unless there are other agreements in writing. The insurance premium is defined under the construction insurance premium tables specified in Annex 3 and construction insurance surcharges specified in Annex 4 enclosed to these insurance rules.

For section, construction items which have been handed over or put into use, responsibility of the insurers for these parts and construction items shall terminate as soon as such section or items are handed over or put into operation.

The insurance contract shall end effect on date specified in contract. All cases of prolonging the insurance time limit must be agreed in writing by the insurers.

Article 7. General conditions applicable to both of material damage insurance and liability insurance for the third party

1. The insured has obligation to comply with provisions of these insurance rules, to conduct full obligations on information supply to the insurer, to declare and answer fully and exactly questions stated in request for insurance. This is prerequisite condition to bind responsibility of the insurer.

2. The insured has obligation to conduct all necessary measures to prevent loss or responsibility able to happen and comply with all regulations and proposals of designers. The arising costs related to application of measures mentioned above are covered by the insured.

3. At any reasonable time, representatives of the insurers have rights to consider and check the insured risks. The insured has obligation to supply for representatives of the insurers about all necessary details and information for assessing the insured risks.

The insured has obligation to notify immediately the insurers by information means and in writing about any important change for the insured risks (the insured shall cover cost for this notification). The insurers have right to request the insured for implementing the necessary prevention measures and in necessary case, the insurers may adjust the insurance scope and insurance premium for conformity.

The insured does not arbitrarily conduct or accept any important change which increases the insured risky level, unless the insurers have accepted it in writing.

4. In case where insurance events within scope of compensation according to these insurance rules happen, the insured has obligations:

a) To immediately notify the insurers by information means and after that notify in writing, clearly state nature and extent of loss,

b) To conduct all measures within capability to limit loss at lowest level,

c) To preserve damaged section and be ready for representative or expert of the insurers to carry out the expertise of such section,

d) To supply all information and vouchers, documents at the request of the insurers aiming to define nature and extent of loss,

e) Immediately notify public security agencies in case of loss due to theft.

In all cases, the insurers shall not be responsible for material damages or liability arising from such damage if the insurers have not yet received notice of damage within 14 days after date of happening insurance event.

After notifying the insurers, the insured may repair or replace small damages and in all other cases, it is required to have presence of the representative of the insurers for carrying out the expertise of loss before conducting repair or replacement. If the representative of an insurer fails to carry out the expertise in duration considered as reasonable time under really conditions, the insured has right to speed up the repair and replacement.

Responsibility of the insurers for any insured construction items which are damaged will terminate if such construction items are not repaired timely and thoughtfully.

5. The insured has obligation to conduct, coordinate with or allow the insurers to conduct all acts and necessary measures or at the request of the insurers aiming to protect all rights and benefits which the insurers are entitled enjoy after payment or compensation of damages within the insurance liability according to these insurance rules, although these acts and measures are conducted before or after the insurers pay compensation to the insured.

Rights which the insurers are entitled to enjoy include right to exempt liability or right to claim a third party (not being the insured according to these insurance rules) for refund. The arising costs related to this job are covered by the insurers.

6. All disputes between the insurers and the insured in insurance according to these rules will be solved firstly on basis of negotiation. If two parties fail to solve by negotiation, those disputes shall be solved at Court as prescribed by Vietnamese law.

7. If there is fraudulence in compensation request in any aspect or if there is any declaration in contravention with the true, which is given out or used to support for such compensation request, or if the insured or person on behalf of the insured uses any fraudulent means or trick for insurance profiteering, all rights and benefits according to these insurance rules will be no longer valid.

Rights and benefits according to these insurance rules will be no longer valid if within 3 month, after compensation request is refused or arbitrator makes a judgment on solving such compensation request and the insured has no complaints against the insurers.

8. If at the time of arising compensation request according to these insurance rules, there is any other insurance contract insuring such material loss or liability, the insurers will have only compensation liability involving compensation request for such material loss or liability at the rate of the insurance money already agreed and total insurance money of all insurance contracts in which the insured has signed.

Article 8. Exclusions generally applicable to material damage insurance and liability insurance for the third party

The insurers are not responsible for compensating material damages or liability to the third party causing by, arising from or able to place the blame for:

1. Wars, invasion, hostile acts of foreign countries (declaration of war or no declaration of war), civil wars, riots, uprisings which may lead to armed rebellions or scramble for the authorities;

2. Terrorist activities mean acts committing by a person or a group of person conducting alone or on behalf of or related to any organization or Government for political, religious, ideological purpose, or similar purposes including purpose to cause effect to any Government, panic for people or any people's part.

Exclusions specified in Clauses 1 and 2 of this Article not including damages, loss, cost due to any reason directly or indirectly causing by, originating from, or related to any action which is conducted to control, prevent, extinguish or concerning events stated in Clauses 1 and 2 of this Article.

If basing on exclusions specified in clauses 1 and 2 of this Article, the insurers refuse compensation for loss, damages, costs under insurance contract, the insured is responsible for proving that such loss, damages, costs are included in insurance liability and not fall in exclusions specified in Clauses 1 and 2 of this Article.

3. Nuclear reaction, nuclear radiation or radioactive contamination;

4. Willful acts or errors repeated of the insured;

5. Stop of works irrespective of entire or partly work;

6. Damages to data, software and computer programs, including:

- Loss or damages to data or software, specially any disadvantage change on data, software or computer programs due to erasing, broking or deforming the initial structures of such data, software, computer programs and all loss from the interrupted business because of reasons from above loss, except for loss or damages for data

- Losses or damages arising from loss or decrease of ability for use, access of data, software or computer programs and all losses from the interrupted business with reason from the losses above.

Article 9. Insurance for material damages

1. Insurance commitment

If in time limit of insurance, any items of property stated in insurance contract or any part of such items are damaged suddenly and unforeseen due to any reason other than reasons excluded below to the extent which it needs be repaired or replaced, the insurers are responsible for compensation such loss for the insured according to these insurance rules by payment of amount, repair, or replacement (under selection of the insurers). The compensation level for each items of property stated in insurance contract does not exceed the insurance money of such items of property and in scope of limitation of compensation liability for each insurance event (if any). Total insurance compensation money does not exceed total insured amount set in insurance contract.

The insurers are responsible for compensation for the insured for cost of cleaning scene after happening accident leading to compensation request provided that the insurance amount for this cost has been set in insurance contract.

2. Exclusions applicable to material damage insurance

The insurers will be not responsible for compensation for:

a) Deduction set in insurance contract. The insured must self-pay this deduction in every insurance event. The deduction is defined as prescribed in Annex 5 - Deduction for material damages (enclosed to these insurance rules);

b) All losses of all kinds with nature of consequences, including fines, loss due to delay, failing to implement job, damage from losing contract;

c) Direct losses due to wrong design;

d) Costs for replacement, repair, restore of defects of materials or errors due to poor workmanship, however, these exclusions are just limited in items affected directly, loss of other items which happen due to consequences of defect materials or poor workmanship are not excluded;

e) Corrosion, abrasion, oxidation, rotting due to little used or happened in condition of normal pressure and temperature;

g) Loss or damage of the construction machinery and equipment due to failure or malfunction of electric or mechanic, due to breakage, the cooled liquids or other solidified solution; due to lubrication system getting defects or lack of oil or liquid. However, if consequences of these failures or malfunctions result accidents causing damage to the insured items, such damages will be compensated;

h) Loss or damage to motor vehicles allowed using on public roads or waterway transport means and planes;

i) Loss or damage for dossiers, drawings, accounting documents, invoices, money, coupons, documents, certificates of debt, shares, letter of guarantee, cheque;

k) Loss or damage which only be detected at inventory time.

3. Insurance terms applicable to material damage insurance

3.1. The insurance money:

a) For construction works specified in Clause 1, Article 1 of these insurance rules: The insurance money stated in insurance contract includes all materials, salaries, freights, customs duties, other kinds of taxation, raw materials or items supplied by owner of the works and shall not be lower than total value of construction contract.

b) For construction equipment, construction machinery in serve of item construction specified in Clauses 2 and 3, Article 4 of these insurance rules: The insurance money stated in insurance contract is not lower than the replacement value (market price) of construction equipment and construction machinery, i.e costs for replacement of the items are insured to be equal to new items of the same kind and same feature.

In case there is significant change involving salary or price, the insured must re-adjust insurance money. This adjustment takes effect only after having been stated in insurance contract or written acceptance of the insurers.

In case of arising loss, if detecting that the insurance money is lower than value of the insured property, the insurers are responsible for compensation for the insured according to the rate between insurance money and value of the insured property. All objects and items of cost must comply with this condition separately.

3.2. Bases for solving compensation:

In all case of arising loss, basis for solving compensation under insurance contract as follows:

a) For damage able to repair, bases for solving compensation are necessary cost to restore the damaged items to return status as before happening damage, after deducting the recoverable value part.

b) For case of whole damage, bases for solving compensation are actual value of such items before happening damage, minus the recoverable value part.

The insurers only compensate for expenditures which the insured must pay in reality and according to the levels calculated in insurance money for such expenditures, provided that the insured must comply with full conditions and terms stated in insurance contract.

Depending on each specific case, the insurers only compensate after having accepted necessary documents and vouchers to prove that the repair had been carried out or replacement had been performed. All losses which may be repaired must be repaired, but if cost for repair is similar to or exceeds value of such items at time before happening losses, payment of compensation will be performed on the basis of provisions in point b, Clause 3.2 of this Article.

The insurers will pay cost for temporary repair if such cost is a constituent part of official repair and not increase the repair cost.

The insurers will be not responsible for compensation for all expenditures aiming to renew, supplement and/or upgrade the insured items.

3.3. Expansion of insurance scope:

According to these insurance rules, in case where the insurance buyer wish to expand insurance scope for material damage, it/he/she may make agreements with the insurers in writing about insurance money and insurance premium.

Article 10. Liability insurance for third party.

1. Insurance commitment

In scope of insurance money stated in insurance contract, the insurers will compensate for the insured with amounts which the insured has legal liability to pay compensation for arising damages by causing:

a) Sudden injuries or sickness to third person (death or no death)

b) Sudden loss for property of third party,

The insurers’ responsibility only arise in condition where damages mentioned above concern directly construction or installment of the insured items under agreements in insurance contract at construction site or surrounding areas during time limit of insurance.

For compensation requests accepted payment, apart from payable costs in insurance scope, the insurers are responsible for additional compensation for the insured:

- All legal expenditures which the plaintiff has claimed back from the insured;

- All arisen expenditures with consensus in writing of the insurers,

The insurers’ responsibility in this part does not exceed the compensation level stated in insurance contract.

2. Exclusions applicable to liability insurance for the third party

The insurers will be not responsible for compensation for:

a) Deduction set in insurance contract. The insured must self-pay this deduction in every insurance event;

b) Cost for manufacture, re-manufacture, upgrading, repair or replacement of the insured items or able to be insured under agreements in insurance contract;

c) Damages to property, land or houses due to vibratory or because load-bearing structures and engineering geology are moved or weakened; injuries or damages to person or property which are caused by events mentioned above (unless there is other agreement by the amending and supplementing terms);

d) Responsibility by consequences of:

i) Injuries, sickness which were caused for hired workers, employees of contractors or owner of the works or any other enterprises related to the works already been insured entirely or partly under agreement in insurance contract or caused for members in their family.

ii) Loss which were caused for property under ownership or right to manage, care, or control of contractors or owner of the works or any other enterprises related to the works already been insured entirely or partly under agreement in insurance contract or property of hired workers, or employees of one of subjects mentioned above;

iii) Accidents which were caused by motor vehicles allowed circulation on public roads or caused by waterway transport means or planes;

ix) Any agreement of the insured about payment of amount under form of compensation or other form, unless such responsibility belongs to compensation liability of the insurers under insurance contract.

e) The arising responsibility because the insured has supplied or failed to supplied advices, services with professional characteristic or because of any concerned error or omission;

g) Responsibility from pollution or contamination except for destruction or causing damages to insurance objects due to pollution or contamination which arises from any insured risk and the arising responsibility related to materials or wastes which are available or discharged out;

h) Responsibility arising from or concerning asbestos;

i) Responsibility concerning fines upon failing to perform contract.

3. Insurance conditions applicable to liability insurance for the third party

a) The insured or person on behalf of the insured does not arbitrarily realize, propose, promise payment or compensation of amount concerning insurance contract without consensus in writing of the insurers. In necessary case, the insurers are entitled to defend or solve any complaint under name of the insured or entitled to name on behalf of the insured for conducting sue or implement other measures to claim for compensation of damages and have all rights to act in litigate procedures or settlement of complaint. The insured has obligation to supply all relevant information and support at the request of the insurers.

b) For accidents under insurance responsibility, the insurers may pay entirely compensation amount for the insured (after deducting any compensation amount paid for such accidents) or pay amount less than amount able to accept payment of compensation for such accidents, after that, the insurers will not take any responsibility related to such accident as prescribed in this Article.