Miller's Marine War Risks

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6.1 It is in one sense surprising that “war” has been expressed as an insured peril only since the MAR Form was introduced in 1983. It is, therefore, a new peril to the War Risks Policy. Having said that, if not mentioned by name, the sense of “war” as being an insured peril under war risk policies was caught by and large by Clause 2(a) of the now defunct S.G. Form which provided “hostilities” and “warlike operations” as perils, and the f.c. & s. warranty which spoke of “consequences of hostilities or warlike operations, whether there be a declaration of war or not”. These words, however, gave rise to significant difficulties of interpretation. The 1943 amendment to the f.c. & s. Clause was in response to the House of Lords’ judgment in The Coxwold,1 and was intended to ensure that only in the clearest cases would casualties, which could have been payable by either the Marine or the War Risks Policies, be paid by the war risk underwriters.

The definition of “war”

6.2 War is defined in the Oxford English Dictionary as: “Hostile contention by means of armed forces, carried on between nations, states or rulers, or between parties in the same nation or state; the employment of armed forces against a foreign power, or against an opposing party in the state”, and hostile as: “of, or pertaining to, or characteristic of an enemy; pertaining to or engaged in actual hostilities”, and hostility as: “The state or fact of being hostile; hostile action exercised by one community, state, or power against another.” 6.3 On the one hand the new forms have done away with the need to consider the myriad cases seeking to delineate the meanings of “hostilities” and “warlike operations”, many of which did not speak with the same voice. However, it is quite possible that, at least used sparingly and with a degree of caution, the cases which sought to define the scope of “hostilities” in the past will be apt to apply to the meaning of the “war” peril. To the extent that “war” is to be interpreted more narrowly than “hostilities” and (more likely) “warlike operations”, it seems likely that the overspill will instead fall into the new wording “or any hostile act by or against a belligerent power” (considered in ). 6.4 Where, as is so very often the case, “war” appears alongside “civil war” in a list of perils, the sense of the word is of a dispute with an international character. However, if the word was to appear alone, it embraces a war of both an international or domestic

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(i.e. civil) complexion: see Pesquerias y Secaderos de Bacalao de Espa˜na S.A. v. Beer 2 and Spinney’s (1948) Ltd v. Royal Ins Co Ltd. 3 6.5 In Driefontein Consolidated Gold Mines Ltd. v. Janson [1900] 2 QB 339 Mathew J. quoted with approval Hall on International Law (4th edn), p.63:

When differences between states reach a point at which both parties resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant.4

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