Miller's Marine War Risks
Page 66
CHAPTER 10
… Or any hostile act by or against a belligerent power
… Or any hostile act by or against a belligerent power
10.1 These words were not included in the f.c. & s. Clause until the 1943 version, and then only in a heavily qualified form. The reasons for the decision of Alan Jackson’s Committee in 1983 to exclude “warlike operations” from the new MAR Form are described in . Its place was taken by the wholly new insured peril of “war”, which in turn was reinforced by “or any hostile act by or against a belligerent power”, promoted for the first time to the full standing of an insured peril in its own right from its previously obscure position. Whilst, as noted in , there are still a number of unanswered questions about “war” as an insured peril, it can still be regarded as definite and precise. Whilst there are few judicial definitions of the insured peril which this chapter considers, there are sufficient to suggest the view that it, too, is definite and precise with a well-defined field of application. 10.2 The Oxford English Dictionary defines “hostile” as: “feeling or showing dislike or opposition; of or belonging to a military enemy” and “hostilities” as: “acts of warfare”. “Belligerent” is defined as “hostile and aggressive”; “engaged in a war or conflict” (both adj); “a nation or person engaged in war or conflict” (n). 10.3 Therefore, even before the eye reaches the word “power” a distinct flavour is introduced of warlike actions (or, one might say, “warlike operation”) by or against a State or at the very least an organised body of persons. In connection with “power”, it should be noted that the f.c. & s. Clause contained an explanation: “and for the purpose [of the f.c. & s. Clause] power includes any authority maintaining naval, military or air forces in association with a power”. This phrase has been left out of the MAR Form, no doubt because it was felt to be unnecessary and added nothing to the insurance cover given. 10.4 Matters were put on to an even firmer and more definitive basis by Bailhache J. in Atlantic Mutual Insurance v. The King.1 The Tennyson sailed from Bahia bound for New York in February 1916 loaded in number 4 hold with a cargo of hides and skins. Five days after sailing, on 18th February 1916, a bomb exploded in the hold, seriously damaging the aft end of the ship and the hides and skins in number 4 hold, killing three seamen and starting a fire. It was clearly a very powerful weapon, and it turned out that it was planted there by Herr Niewerth, a German citizen living in Bahia. Niewerth was an electrical engineer and the manager of a local factory. His house was the centre of German activities in Bahia and he never made any secret of his patriotic feelings. Atlantic, who were the primary insurers, paid the claim of the owners of the cargo, and looked to Mr. KingPage 67
In one sense, it is plainly true that the fire was due to a hostile act, but the plaintiffs say rightly, as I think, that the word “hostilities” as used in the Clause, means hostile acts by persons acting as the agents of sovereign powers, or such organized or considerable forces as are entitled to the dignified name of rebels as contrasted with mobs or rioters, and does not cover the act of a merely private individual acting entirely on his own initiative, however hostile his actions may be.