Marine Insurance: Law and Practice




19.1 There may be many factors contributing to an event and its consequences. Rules of causation provide a means of distinguishing between those causes which trigger liability and give rise to certain defences in accordance with the contractual relationship between assured and insurer.1 In general, whether or not a loss is covered by a marine policy depends on ascertaining its proximate cause.2 The burden is on the claimant to prove his case, so, if he fails to prove on a balance of probabilities that he has suffered a loss caused by an insured peril, his claim will fail, regardless of whether or not, and to what extent, the defendant can adduce an explanation for the loss.3


19.2 In order to recover an indemnity, generally an assured must prove that a loss was caused by the fortuitous operation of an insured peril.4


19.3 “[L]ack of inevitability is no proof of a fortuitous external accident or casualty.”5 In The Cendor MOPU,6 Lord Mance queried “whether and to what extent there exists a further principle of insurance law, that loss which is inevitable is irrecoverable”. He said:

“If both parties know that loss is inevitable, there may be no risk or insurance at all, although in endowment insurance the risk lies in the uncertainty when death will occur. If the assured alone knows that the loss is inevitable, one would expect him to fail, if only on grounds of non-disclosure. If neither party knows, then inevitability resulting from inherent characteristics of the goods will, in the absence of express provision, bar recovery on the grounds of inherent vice. Whether inevitability resulting from outside causes will do so seems an open question. Would it be an answer to war risks insurers to prove that an insurance on cargo was placed at a time when the cargo was already on an aircraft in flight with a timed bomb due to go off in ten minutes in its cargo hold?”

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