Miller's Marine War Risks

Michael Davey; James Davey and Oliver Caplin

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CHAPTER 14 … And the consequences thereof or any attempt thereat

14.1 The Institute War and Strikes Clauses read: “Capture seizure arrest restraint or detainment, and the consequences thereof or any attempt thereat” whereas the rules of the Mutual War Risks Associations read: “Capture, seizure, arrest, restraint or detainment, and the consequences thereof or any attempt thereat.” The differences in punctuation should not produce any difference in construction: both “consequences” and “attempt” apply to each of the preceding insured perils. 14.2 The war risk cases on “consequences” all arise out of the f.c. & s. Clause of the S.G. Form, where the standard form of the warranty included the words “and the consequences thereof or any attempt thereat”. They have thus been decided in the context of an exception to a peril, which would otherwise have been insured by the Marine Policy, or an excepted peril which is turned into an insured peril in the War Policy, and have to be read in that context. At the date of writing, there have been no cases decided on the modern Institute War and Strikes Clauses’ “consequences and attempt”. It is suggested that the cases of the S.G. Form continue to be authoritative. The question as to what is a “consequence” of an insured peril simply involves identifying whether the proximate cause continues to operate.1 The “consequences” of an insured peril are the losses resulting from that peril, and the word does not enlarge the peril.2 Causation in general is considered in . Cases on causation decided before Leyland Shipping Co v. Norwich Union Fire Insurance Society,3 need to be considered with some care, as before Leyland the proximate cause was normally identified as the cause latest in time rather than that which was the most efficient cause. 14.3 Ionides v. The Universal Marine Insurance Company 4 concerned 6,500 bags of coffee loaded on board the Linwood in Rio de Janeiro bound for New York with calls in Belize and New Orleans. The coffee was insured on the S.G. Form with the following exclusion clause: “… free from capture, seizure, and detention, and all the consequences thereof, or of any attempt thereat, and free from all consequences of hostilities, riots, or commotions.” The ship ran aground when the Master was confused by the absence of a light, which had been extinguished by Confederate troops in the American Civil War.

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Confederate officers took the Captain and crew prisoner. 150 bags of coffee were landed and seized by Federal troops and, if the Confederate troops had not prevented it, another 1,000 bags could have been safely landed. The ship then broke up in bad weather and the remaining coffee was lost. 14.4 The act of extinguishing the light was held to be a hostile act, but the loss of the ship was not a consequence of that act. Erle C.J. considered various scenarios as to what would or would not be a consequence.5 First, a hostile attempt is made to take a ship. In her endeavours to escape she goes aground. This is a loss by the “consequences of hostilities”. Second, the ship is chased by an enemy warship and, in trying to avoid being taken, she is forced into a bay from which the wind will not let her escape. The wind drives her ashore. This loss results from an “attempt at capture”. Third, there are two channels to a port, only one of which is mined. In ignorance, the Master uses the mined channel and the ship is mined. The proximate cause of the loss is the “consequences of hostilities”. Fourth, a ship is chased into a bay from which she escapes on a change of wind. She is later lost in a storm which, but for the chase and the resultant delay, she would have avoided. The proximate cause is perils of the seas, not an attempt at seizure. Fifth, the Master, aware of mines in one channel, uses the other and runs the ship aground by bad navigation. This is not a loss proximately connected with the consequences of hostilities, but with a peril of the seas. 14.5 In the Linwood, Erle C.J. considered that the ship was wrecked as a result of “perils of the seas”, but that only 5,350 bags of coffee were lost by this cause. One thousand bags could have been landed but for the hostile actions of the Confederate troops. The underwriters were excused paying for these because of the exception. Willes J. agreed. As to “consequences” he said this:

I apprehend it is a fallacy to say that a larger sense is to be given to this exception by reason of the use of the word “consequences” than if the word used had been “effects”. In construing the exception we can only look to the proximate consequences of hostilities.6

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