Define marine insurance?
Marine insurance is a contract where by the insurer undertakes to indemnity the assured, in manner and to the extent thereby agreed, against losses incident to marine adventure.
Thus, like in any contract, terms and conditions, etc are stipulated making the policy tailor-made in respect of manner and extent. Important thing being, it covers the losses incidental to marine adventure. Thus, a plan may include rail, road and air coverage.Non-marine risks can also be covered where expressly covered or by usage of trade. Thus, if smooth functioning of a shore establishment is dependent on regular earning of freight, the smooth functioning of establishment may find cover under a marine policy. The important thing being the root cause is traceable to the marine peril. Marine adventure must be lawful. Marine adventure exists where insurable property i.e. ship, goods, or earnings of vessel i.e. freight commission or liability to third party etc, are exposed to maritime perils. Maritime Perils are consequent on or incidental to navigation at sea.
What are the important sections of the Marine Insurance Act?
Some of the important sections of this Act include:
S.4: a policy without insurable interest is void. Thus, if the subject matter does not have any value or no party has any interest in it, its insurance would be void.S.17: imposes a duty on the insured of uberrimae fides (as opposed to caveat emptor ); i.e. The questions must be answered honestly and the risk not misrepresented. Uberrrimae fides, which in Latin means utmost faith, is the hallmark of an insurance policy. The principle of caveat emptor in Latin means, let the buyer beware is not appropriate. It cannot be assumed that at the time of insuring it is only the insurer who is responsible to find the entire truth about the subject matter.
S.18: the insured has a duty to disclose all material facts relevant to the acceptance and rating of the risk. Failure to do so is known as non-disclosure or concealment (there are minor differences in the two terms) and renders the insurance voidable by the insurer. Where the nondisclosure describes a lawful withholding of information, the concealment generally describes an unlawful withholding of information.
S.33(3): if [a warranty] be not [exactly] complied with, then, subject to any express provision in the policy, the insurer is discharged from liability as from the date of the breach of warranty, but without prejudice to any liability incurred by him before that date. Thus, during the coverage period of insurance policy, if ship enters illegal activities, the insurer would void the agreement from that date. The claims prior to that date, however will be covered duly. Later, even if the regular trade is resumed, the insured cannot argue that, ‘now that the trade is legal, the coverage will be resumed’ as provided in 34(2).
S.34(2): where a warranty has been broken, it is no defence to the insured that the breach has been remedied, and the warranty complied with, prior to the loss.
S.34(3): a breach of warranty may be waived (i.e. Ignored) by the insurer. Thus, insurer has option to continue or rescind the contract. S.50: a policy may be assigned. Typically, a shipowner might assign the benefit of a policy to the ship-mortgagor.
Ss.60-63: deal with the issues of a constructive total loss. The insured can, by notice, claim for a constructive total loss with the insurer becoming entitled to the ship or cargo if it should later turn up. (by contrast an actual total loss describes the physical destruction of a vessel or cargo.) S.79: deals with subrogation; ie. The rights of the insurer to stand in the shoes of an indemnified insured and recover salvage for his own benefit.
What is Insurable Interest?
Insured must have financial interest in the object of insurance. Insurable interest exists when one is financially prejudiced by its loss and financially benefited from its continued existence. Insured must have insurable interest at the time of loss.
What is the importance of Utmost Good Faith in a marine insurance policy?
Utmost Good Faith is required from both. There must be absolute transparency in respect of facts related to the case. Thus, insurer must be able to pay for potential claims. Insured must give full information.
Policy can be voided on account of:
- Nondisclosure: of a material fact includes failure to find out facts
- Misrepresentation: about a material fact.
What is Subrogation?
Subrogation Is the right of an insurer after he pays for a loss to assume the rights of the insured to recover this loss from the responsible party. Thus, subsequent to a claim, after say CTL, insurer has right of repairs, salvage, sue, etc, as if he was the owner of the property. Insurer will sue in name of insured the responsible party upto the amount of the settlement. The insured must not relinquish any rights that he may have against other parties.
Give examples of warranties in Marine Insurance policy.
Warranty is a promise by insured for the duration of the policy. Any breach of warranty makes the policy voidable. The warranty may be expressed or they may be implied as follows:
- Warranty regarding Seaworthiness’: Seaworthy at commencement of voyage and at start of each stage of the voyage, onus is on the insurer to prove vessel was unseaworthy.
- Warranty regarding Legality: voyage must be lawful
What is an ‘Express term’?
An express term is a term which may affect the parties in agreement and is therefore expressed / included in or endorsed on the policy. All the printed terms on a C/P from are thus express terms.
What are Standard Terms, Rider and Side Clauses?
Standards terms of a contract will usually be those of basic charterer. They may be amended by deletion or the addition of side and rider clauses. Side clauses are typed clauses inserted in a standard contract. Rider clauses are typed clauses containing additional terms agreed by the parties.
What are Addenda and Side Letters?
Addenda generally contains sensitive clauses which parties would not like to include in the main C/P document for reasons of security. A side letter may concern matters relating to the contract and could include instructions to the Master (relating to the charter).
What is Discharge of Contracts? In how many ways it can be done?
The term discharge implies release from obligations, say as was required by the contract. A contract could be discharged by performance, agreement, frustration or breach. Performance means the carrying out of the contractual obligations by both parties. Agreement means each parties agree that their obligations will be waived. This could mean each party may mutually agree to cancel a future charter. The frustration occurs, when a contract becomes impossible of performance, after it was made, on account of circumstances.
What is breach?
Breach means one party repudiates his obligation to perform his part of the contract.
A breach may occur in the following manner:
- By non performance. Thus, not doing surveys due.
- By defective performance e.g. not involving the surveyors of class for a major repair.
- Where the actual condition of a ship is concealed from a charterer e.g a fact in respect of unseaworthiness.
What is marine adventure ?
“marine adventure” includes any adventure where–
- any insurable property is exposed to maritime perils; the earnings or acquisition of any freight, passage money, commission, profit or other pecuniary benefit, or the security for any advances, loans, or disbursements is endangered by the exposure of insurable property to maritime perils;
- any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property by reason of maritime perils;
Thus, it can be seen that the maritime peril is a common factor, closely connected with maritime adventure.
What is maritime perils?
Maritime perils” means the perils consequent on, or incidental to, the navigation of the sea, that is to say, perils of the seas, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettisons, barratry, etc. Thus, in addition to the incidents clearly stated above, the dangers offered due severity of weather say intense fog, navigation in the vicinity of icebergs, etc also are maritime perils.
What is clause regarding re insurance?
(1) The insurer under a contract of marine insurance has an insurable interest in his risk, and may re-insure in respect of it.
(2) Unless the policy otherwise provides, the original assured has no right or interest in respect of such re-insurance.
Thus, insurer ‘A’, having insured say cargoes for a shipping company may do insurance to safeguard his interests, unless there is any adverse stipulation in original policy.
How is insurable value measured?
Subject to any express provision or valuation in the policy, the insurable value of the subject-matter insured must be ascertained as follows:–
(1) In insurance on ship, the insurable value is the value, at the commencement of the risk, of the ship, including her outfit, provisions, and stores for the officers and crew, money advanced for seamen’s wages, and other disbursements (if any) incurred to make the ship fit for the voyage or adventure contemplated by the policy, plus the charges of insurance upon the whole: The insurable value, in the case of a steamship, includes also the machinery, boilers, and coals and engine stores if owned by the assured; in the case of a ship driven by power other than steam includes also the machinery and fuels and engine stores, if owned by the assured; and in the case of a ship engaged in a special trade, includes also the ordinary fittings requisite for that trade;
(2) In insurance on freight, whether paid in advance or otherwise, the insurable value is the gross amount of the freight at the risk of the assured, plus the charges of insurance:
(3) In insurance on goods or merchandise, the insurable value is the prime cost of the property insured, plus the expenses of and incidental to shipping and the charges of insurance upon the whole:
(4) In insurance on any other subject-matter, the insurable value is the amount at the risk of the assured when the policy attaches, plus the charges of insurance.
Thus, apart from the bare ship, engines, bunkers, stores, etc. which physically and permanently are present on the ship, the temporary or ship specific fittings and the monitory stakes connected to the ship are also taken into consideration. Thus, the advance, which is paid off but not earned yet; cost incurred to make the ship fit, etc are included. In respect of insurance on cargo or freight the incidental costs would also be considered.
What is the clause regarding the disclosure?
(1) Subject to the provisions of this section, the assured must disclose to the insurer, before the contract is concluded, every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business, ought to be known to him. If the assured fails to make such disclosure, the insurer may avoid the contract.
(2) Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk.
Thus, if a charter that would send the ship to a war zone must be revealed to the insurer.
(3) In the absence of enquiry the following circumstances need not be disclosed, namely:-
(a) any circumstance which diminishes the risk;
(b) any circumstance which is known or presumed to be known to the insurer. The insurer is presumed to know matters of common notoriety or knowledge, and matters. which an insurer in the ordinary course of his business as such, ought to know;
(c) any circumstance as to which information is waived by the insurer;
(d) any circumstance which it is superfluous to disclose by reason of any express or implied warranty.
Thus, the fact that the engines perform better on a speed less than declared speed need not be declared. If insurer is not wanting to know, the individual capacities of each compartment, the same may not be declared. Also, during the pandemic, the insured need not state the precautions being taken on board in respect of the pandemic, in respect of which, there already is the global awareness.
(4) Whether any particular circumstance, which is not disclosed, be material or not is, in each case, a question of fact.
(5) The term “circumstance” includes any communication made to, or information received by, the assured.
Thus, a bulker is capable of loading iron ore is a material information, which must be declared, whereas a non hazardous cargo like rock phosphate can be loaded, may not be specifically declared and thus, does not make a material information.
What must the policy specify?
A marine policy must specify–
(1) The name of the assured, or of some person who effects the insurance on his behalf;
(2) The subject-matter insured and the risk insured against;
(3) The voyage, or period of time, or both, as the case may be, covered by the insurance;
(4) The sum or sums insured;
(5) The name or names of the insurer or insurers.
What is clause regarding Double Insurance?
(1) Where two or more policies are effected by or on behalf of the assured on the same adventure and interest or any part thereof, and the sums insured exceed the indemnity allowed by this Act, the assured is said to be over-insured by double insurance.
Thus, let us assume, the indemnity allowed by the Act is 20m dollors and the vessel is already covered by this amount with insurer ‘A’. If the insured also insures with insurer ‘B’ say for 18m dollars; or insured the vessel in respect of ship’s machinery to insurer ‘B’; or draws an unvalued policy; he is supposed to have over insured or double insured the ship.
(2) Where the assured is over-insured by double insurance, the assured, unless the policy otherwise provides, may claim payment from the insurers in such order as he may think fit, provided that he is not entitled to receive any sum in excess of the indemnity allowed by this Act;
Thus, in the situation of the total loss of the ship, (unless restriction caused by any policy) he may receive payment from ‘A’ first, or ‘B’ first, or from each, the payment in any proportion. He, however, shall not receive a total sum more than the indemnity provided.
Where the policy under which the assured claims is a valued policy, the assured must give credit as against the valuation, for any sum received by him under any other policy, without regard to the actual value of the subject-matter insured;
Thus, if say the policy with insurer A is valued policy. The policy is also drawn with B. In case the insured has already received say claim amount for machinery and bunkers from ‘B’, the insurer ‘A’ must be intimated about this so that the sum received can be balanced against the payment due for machinery or bunkers, even if the valued amount was different.
Where the policy under which the assured claims is an unvalued policy, he must give credit, as against the full insurable value, for any sum received by him under any other policy;
Thus, if say the policy with insurer A is unvalued policy. The policy also exists with B. In case the insured has already received from ‘B’ say 40% of the indemnity amount, the insurer ‘A’ must be intimated about this so that insurer ‘A’ understands the liability that still remains.
Where the assured receives any sum in excess of the indemnity allowed by this Act, he is deemed to hold such sum in trust for the insurers, according to their right of contribution among themselves.
Provided that, if the policies are effected at different times, and any earlier policy has at any time borne the entire risk, or if a claim has been paid on the policy in respect of the full sum insured thereby, no premium is returnable in respect of that policy, and when the double insurance is effected knowingly by the assured no premium is returnable.
This follows the principle that you cannot benefit from loss. If an assured is already paid back on the strength of the premiums paid he cannot ask for refund of premiums. If he has already got the full claim back, he should not be paying premium to some other insurer anyway.
What is the provision on sharing the claim by insurers in case of double insurance?
Contribution between the Insurers is to be made as follows:
Where the assured is over-insured by double insurance, each insured is bound, as between himself and the other insurers, to contribute rateably to the loss in proportion to the amount for which he is liable under his contract.
- If any insurer pays more than his proportion of the loss, he is entitled to maintain an action for contribution against the other insurers, and is entitled to the like remedies as a surety who has paid more than his proportion of the debt.
Thus, the double insurance actually implies coverage for the same interests by the same assured for the same perils i.e. if any insured is covered for the same adventure, interests and perils by two or more insurers, then double insurance exists. On the contrary, there would be no double insurance if:
1. subjects are different; or
2. where one or more of the policies are unenforceable and there is only one policy on risk.
What is bottomry?
A bottomry, or bottomage, is when the Master of a ship borrows money upon the bottom or keel of it, so as to forfeit the ship itself to the creditor, if the money is not paid at the time appointed with interest at the ship’s safe return. This is an obsolete bond contract where the master could borrow money say in far of port for the repair of a ship in exchange of which repay the loan on safe arrival at the ship’s destination, for which the ship stood as collateral but where lender assumed the risk of the loss of the ship en route.
What is Respondentia?
Respondetia is a contract where by a loan of money is taken on maritime interest, on goods laden on board of a ship, which, in the course of the voyage must, from their nature, be sold or exchanged, upon this condition, that if the goods should be lost in the course of the voyage, by any of the perils enumerated in the contract, the lender shall lose his money; if not, that the borrower shall pay him the sum borrowed, with the interest agreed upon, The contract is called respondentia, because the money is lent on the personal responsibility of the borrower.
What are the different types of marine policies?
Different types of plans available are:
Marine cargo insurance: Covers damage or loss to cargo caused during the voyage. Delay in loading / unloading, accidents, etc are also covered. For cargoes like oil, chemicals, etc the third party liabilities are covered.
Liability Insurance: Ship owner’s liability under national and international laws, in case of pollution, maritime claims, etc are covered.
Hull Insurance: Various stipulated items are covered for damage or loss. The term usually are standard.
Insurance to safeguard freight: Shipping companies would safeguard themselves against any incident where freight is endangered.
Voyage policy: For a particular voyage.
Time policy: For a specified time period.
Valued policy: Value of the subject is determined and stated on policy.
Unvalued policy: The value is not stated.
Port risk plan: Provides protection against the risks to ship in port.
Open Cover or floating cover: Several shipments are covered under a single policy. A fixed sum is determined to cover multiple shipments, and the details of any shipments are only declared afterwards.
What is an open or floating cover?
Instead of purchasing a policy for each individual shipment, the insured can take out such policy, in which the total value of the cargo and the estimated number of scheduled shipments are specified. Consideration is given to the estimated value that would be handled. Monitoring of the transaction is done systematically. Thus, prior to each shipment, the insured informs the insurer of the exact nature, composition and value of the cargo. It provides automatic cover for all shipments made by the sum insured regardless of the cargo, means of transport or point of departure or destination. The open cover or floating policy provides automatic cover for all consignments sent by the insured, without elaborate knowledge of the consignments.
Why the standardised clauses for the use of marine insurance are called Institute Clauses?
In the 19th. century, Lloyd’s and the Institute of London Underwriters (a grouping of London company insurers) developed between them standardised clauses for the use of marine insurance, and these have been maintained since. These are known as the Institute Clauses because the Institute covered the cost of their publication.
Why the liability under a marine policy may be several but not joint?
In legal terms, liability under the policy is several and not joint; i.e. The underwriters are all liable together, but only for their share or proportion of the risk. If one underwriter should default, the remainder are not liable to pick his share of the claim.
What is the difference between CTL & ATL?
Actual total loss: loss or damage of entire property three ways:
- All property is destroyed.
- Ceases to be a thing of the kind insured.
- Insured deprived of all property.
Constructive Total Loss:
- Cost of repair of replacement exceeds policy limit (commercial total loss).
- Property should be abandoned because its loss appears inevitable or require expenditure exceeds the saved values. Insured unconditionally abandons his interest to the insurer; insurer is entitled to take over the property if desired.
What are Institute Clauses?
“Institute of London underwriters” came together in 1884 to recommend wordings and clauses to be inserted in contracts of insurance.
This are well recognized by ship owners and insurers as wording serves settle claims satisfactorily in fairness to both parties.
Any insurance company can adopt these clauses for incorporation in marine policies.
ITC Hulls;- 26 clauses meant for H & M time policies.
IVC Hulls:- (Institute Voyage Clauses, meant for H & M voyage policies).
ICC: – (institute cargo clauses forms A, B & C).
What is Navigation Clause?
Insured vessel is free to sail or navigate with or without pilots to assist and tow distressed vessel but shall not undertake towage or salvage services under a previously arranged contract.
If prior notice is not given & additional premium is not agreed, no claim is recoverable for loss or liability to another vessel during approach, lying alongside & during cargo work.
Bunkering, F.W. receiving is exempted under this clause.
What is Sistership Clause?
If two vessels belonging to same ship owner or same manager collide, clause seeks to treat the vessels as if they belonged to different owners. “Should this vessel insured come into collisions with or receive salvage services from other vessel of same owner, assured to have same rights as if the other had no interest in this ship”.
What is Sue& Labour clause?
Under this clause it is the duty of the assured whenever the subject matter insured is under threat of Damage/ Loss the assured must take all reasonable steps to prevent/ minimize the Damage /Loss.
The underwriters agree to bear the expenses of any such action provided the following conditions are met,
The action taken should be:
- for the property insured;
- by the owner or his servants;
- reasonable; and
- to prevent loss.
In other words the assured must take such action to prevent loss or minimize the damage as if the property concerned is not insured.
What is 3/4th collision liability clause?
Third-party liability coverage is the portion of an insurance policy that protects the insured (first party) if sued (or threatened to be sued) for a physical injury or damage to other person’s property.
In one particular arrangement, the English hull policy covered 3/4ths of the collision risks and the P&I Clubs the remaining 1/4th.
Nowadays, the Club may have different arrangements involving mixed policies. In case of collision cover under the hull policy, the coverage of a ship owner’s liability for damage to the other vessel and her cargo caused by physical contact would be limited to the insured value of the insured vessel. P&I cover takes on such liabilities in excess of the hull cover limit, together with a wide range of other risks arising from the collision incident including damage to cargo carried on the entered vessel, personal injury, pollution and wreck removal.
Where the H&M or the P&I (anyone) provides cover for 4/4 RDC, and if there is a collision claim, the insured needs to deal with only one Insurer (either the H&M or P&I Insurer) instead of seeking agreement from both of them. Some insurers while providing P&I cover, generally exclude cover if another policy exists covering the same risk by way of an “escape”, “non-contribution” or “other insurances” clauses i.e. if the H&M policy covers 4/4 RDC and the P&I policy covers ¼ RDC, then as there is an another policy covering 4/4 RDC, the P&I policy would not engage for any RDC claim. The insured therefore must carefully check the clauses carefully.
How are insurance policies interpreted?
Basically, there are two broad principles used:
1. Interpretation of a term to be done in background of entire policy orthe intention of parties.
Insurance policies are a contract between the insurer and the insured and, as a consequence, the general rules of interpretation of contracts apply to insurance policies. The court will consider the contract as a whole to search for an interpretation that is consistent with and promotes the intention of the parties to the contract. (Consolidated Bathhurst v Mutual Boier & Machinery,  The application however, may have exceptions.
2. Doctrine of contra proferentem If there is any ambiguity in the policy, such ambiguity is almost always resolved in favour of an interpretation that benefits the insured. This is an application of the doctrine known as contra proferentem, which means the words of a contract should be interpreted against the interests of the person who drafted it. A review of the cases interpreting marine insurance policies will uncover many cases where the courts seem to have used the doctrine of contra proferentem as a tool to avoid the plain meaning of the policy and the intention of the parties as disclosed by the words used. Further, such a review might lead one to believe that the doctrine of contra proferentem is the first rule of interpretation of insurance contracts. In a recent case it was stated by the Supreme Court that, where two or more meanings are possible the court should select the meaning that promotes the intent of the parties. Further, the Supreme Court specifically said that courts should avoid an interpretation which will give either a windfall to the insurer or an unanticipated recovery to the insured.
What is the difference in a condition and a warranty?
Condition is a contractual term of the policy. Any breach of which by the assured will in the event of a loss arising otherwise payable under the policy afford underwriters a defense to any claim. This is irrespective of whether there is a causal connection between the breach of the contractual term and loss.
Warranty on the other hand is a contractual term of the policy a breach of which will not of itself afford a defense to underwriters unless there is a necessary causal link between the breach and the loss which is the subject of the claim under the policy. This indicates that there is just a thin line difference between a condition and a warranty. Thus, all warranties are conditions but not all conditions are warranties.
Explain, what you mean by a condition. What is effect of breach?
The conditions, whether expressed or implied are condition precedent to the right of the person insured to recover under such insurance policy. These are generally in forms of
(a) Condition Precedent to the validity of the policy:
the statement that are mentioned in the proposal form must be complete and true.
the subject matter must be in existence at the time of insurance contract; and
it must be described adequately. The insurance policy would be void or voidable from the beginning if such conditions are not fulfilled.
(b) Conditions subsequent to the validity of the policy:
the interest in the subject matter cannot be transferred by the insured alone, but have to take the consent of the insurer for the purpose of doing so; and
the risk cannot be altered by the insurer at a later stage as described originally.
(c) Condition precedent to the liability of the insurer:
the notice of the loss must be given to the insurer immediately after the loss is occurred;
insurer must be assisted by the insured in investigating the cause of the loss; and
every notice of claim must be forwarded by the person insured to the insurer.
Effect of breach of condition:
If a condition subsequent is broken the policy ceases to be operative from the date of the breach. The breach of a condition precedent to the liability of the insurer prevents the insured from recovering indemnity for the loss.
What is warranty in respect of a marine policy? What is effect of breach?
A warranty comes into existence in one of the following ways:
where the insured undertakes that some particular thing shall or shall not be done ; or
where he undertakes that some condition shall be fulfilled ; or
where he affirms or negates the existence of a particular state of facts.
A warranty has been defined as a stipulation collateral to the main purpose of the contract, the breach of which gives rise only to a claim for damages but not to avoid the contract altogether. A condition may be treated as a warranty, however not vice versa, that is, the party entitled to avoid the contract by a breach of condition may not avoid the contract but may elect to be satisfied with the lesser remedy of damages. The insurer is discharged from his liability if the conditions are not strictly complied, whether it is material with the risk or not.
Effect of breach
If there is a breach of warranty, the insurer is not bound to perform his part of the contract unless he chose to ignore the breach. On discovering the breach, the insurer may either elect to treat the contract as repudiated, in which event he is no longer bound by the contract, or he may affirm it in which case he will continue to be bound by the contract.
When is the breach of warranty excused?
(1) Non-compliance with a warranty is excused when, by reason of a change of circumstances, the warranty ceases to be applicable to the circumstances of the contract,
or when compliance with the warranty is rendered unlawful by any subsequent law.
(2) Where a warranty is broken, the assured cannot avail himself of the defence that the breach has been remedied, and the warranty complied with, before loss.
(3) A breach of warranty may be waived by the insurer.
Discuss warranty of sea worthiness of ship.
Warranty of sea worthiness of ship
- In a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure insured.
- Where the policy attaches while the ship is in port, there is also an implied warranty that she shall, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the port.
- Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of or further preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect of such preparation or equipment for the purposes of that stage.
- A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.
- In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an un seaworthy state, the insurer is not liable for any loss attributable to Unseaworthiness.
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