Miller's Marine War Risks

Page 251


The proximate cause

The proximate cause

28.1 It is a fundamental principle of English law that the assured who seeks to establish a claim, or the underwriter who seeks to contest it, must first establish the facts of the casualty, and then show that the facts bring the casualty within the bounds of an insured peril, or in the case of the underwriter, within the bounds of an exclusion. These principles are too well known to need emphasis here, and a reader who desires to look into this aspect of the matter more closely will find the principles admirably explained by the learned authors of Arnould (19th edn), , particularly with regard to marine insurance. 28.2 Many people find it difficult to accept that a war risks case presents anything more than the usual challenge of determining the proximate cause. There will of course be no difficulty where a missile strikes the ship, or a shell hits it. The surrounding circumstances and the damage speak for themselves. But it is not always so easy where there is a fire in the cargo. Was this caused by spontaneous combustion, or was it caused by sabotage? The difficulties are exacerbated when the ship is sunk in deep water and cannot readily be examined without huge expense. Particular difficulties will be found with oil cargoes, where the risk of explosion in the tanks is always a high one. Was the proximate cause inherent in the cargo or the gases which it gives off? Or was there some incendiary device in the tanks? Mines are, curiously enough, difficult to blame with absolute certainty for some casualties as will be seen in other parts of this work. They are rarely seen, and the modern type of mine lies on the bottom of the sea where it is well out of sight. 28.3 Although the new type of war risks insurance tries to name the event itself as the insured peril, and concentrates less than before on the motives of people, these will inevitably arise where there are cases of detention. Lastly, evidence depends on that most imponderable of elements in all litigation, the factual and expert witnesses, and the effect they create on the court. The tests to be applied to establish the proximate cause are clear enough, but the results in court can never be regarded as a foregone conclusion. 28.4 Considered below are the aspects of proof which are most likely to be of concern to the assured or to the underwriter concerned with a war risk casualty. Three particular aspects are dealt with:
  • 1. The modern position on proximate cause generally (§28.6 to §28.13).
  • 2. War Risk cases:
    • (a) Several things happen more or less at once. What caused the casualty? Is it an insured peril or is it an exclusion?
    • (b) A casualty happens but its cause cannot be established with any certainty.

Page 252

28.5 Given the subject of this book, and the availability of more detailed general texts covering the topic, the focus here is on cases in which issues arose concerning proximate loss in the context of a dispute about the operation of a war risks policies. However, it is necessary to stray outside this field from time to time to ensure the law is accurately related.

Proximate cause generally

28.6 The Marine Insurance Act 1906 contains in section 55(1) a succinct encapsulation of the importance of establishing the proximate cause:

Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but subject as aforesaid, he is not liable for any loss which is not proximately caused by a peril insured against.

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