As we have previously advised, the Hull war risks covers more than just loss and damages due to warlike risks.
The Hull war risks covers loss and damage due to wrongful and unlawful acts and detention by a government authority.
A 2011 case is a good example of the little unknown risks covered under a Hull war risks policy. In 2009 an Egyptian Court ordered the owners of the vessel ‘Silvia’ to pay for alleged unpaid port dues owed to the port authority by another vessel owed by another owner and arrested the vessel and the vessel was detained there for about two years. Appeals by the innocent owners in the Egyptian court were not successful and the owners then submitted a claim under the vessel’s war risk policy.
The war insurers agreed there was a prima facie claim under the policy as the loss was covered by ‘capture, seizure, arrest, restraint or detainment..’
However the war insurers argued the loss was excluded under the policy on account the loss arose from the vessel being arrested by a lawful court and there was an exclusion clause in the policy in respect of ‘claims arising out of ordinary judicial process’.
The war insurers also argued the owners failed in their duty to comply with the sue and labour clause in the policy requiring the owners to take all such steps as may be reasonable to avert or minimize any loss, damage, expense, liability, cost or expense in respect of claims covered under the war risks policy.
The Court determined there was no relationship between the vessel which allegedly owed the port dues and the ‘Silvia’ to form any grounds for arresting the ‘Silvia’ ; further there was evidence the port authority was in collaboration with a ship chandlers to falsify invoices in order to collect the outstanding port dues from innocent owners.
It was held that the arrest was ‘not an ordinary judicial process, but was an exercise of extortion from owners of an innocent and unconnected vessel’. The test was whether any reasonable court in the same circumstances would have ordered the ‘Silvia’ to be arrested and would have ordered the ‘Silvia’ to pay for debts owed by another owner.
With regard to the second defence of the war insurers that the owners failed to avert or mitigate their loss, it was held that no reasonable owner would have acted differently to the owners of the ‘Silvia’ and the lawyers instructed by the owners were competent and no other lawyers could have done better.
It was therefore held in the Commercial Court in 2011 the owners were entitled to claim a constructive total loss under the war risks policy.
About 7 years ago, we advised several Chinese owners to claim a constructive total loss under the vessel’s war risks policy in similar circumstances. These vessels were detained by Indonesian Government bodies on the grounds the cargo of rounds logs loaded were unlawful cargo not permitted to be exported despite production of export permits by the Government. The vessels were detained by Government bodies in Indonesia for over 6 months and were not arrested by the Court. The claim under the war risks policy was based on the ground the detainment was not ‘an ordinary judicial process’ and also it was evident the owners were effectively being forced by means of extortion to pay a some of monies which they were not legally liable to.
See attached file : ALCO20120009War Risks – covers more than just warlike activities.pdf
战争险 – 承保范围不限于战争行为
我们之前提出过，船舶战争险不仅仅承保因战争风险引起的损失和损害。
船舶战争险承保因不当或违法行为，以及因政府当局扣留船舶而引起的损失和损害。
2011年有一个案子可以说明人们对于船舶战争险所承保的风险知之甚少。2009年&战争险保单规定，损失包括 “捕获、拘留、扣留、禁制、扣押…” ，战争险保险人承认依照初步证据该索赔可以成立。
但是，战争险保险人提出，本案中损失是由于船舶被一个合法的法院扣留而引起的，保单除外条款规定 “因普通司法程序引起的索赔” （属于除外责任），因此该损失不在承保范围之内。
同时，战争险保险人认为，船东没有遵守保单中防止损害条款的规定，即采取一切合理措施以避免或减少任何损失、损害、费用、责任、支出或与该战争险保单所承保索赔相关的费用。
法院认为，拖欠港口税的船舶和 “希尔维亚” 号没有任何关系，法院没有任何理由扣留 “希尔维亚” 号。另外，有证据证明港口当局勾结一船具商，伪造发票，以向无辜船东收取未付的港口税。
法院认为，该扣留 “不是普通司法程序，而是对无辜且无关联的船舶船东的勒索行为” 。判断依据是，在相同情况下，任何通情达理的法庭，是否会指令扣留 “西尔维亚” 号要求其船东支付由其他船东所欠的债务。
对于战争险保险人的第二个抗辩，即船东没有避免和减少损失，法院认为，任何一个通情达理的船东都会像 “希尔维亚” 号船东那样做，船东聘请的律师不仅胜任且没有其他律师可以比他们做得更好。
因此，2011年商事法庭判决，船东有权依据战争险保单提出推定全损的索赔。
7年前，我们曾建议几位遭遇类似状况的中国船东，依据战争险保单提出推定全损索赔。当时，印尼政府机构扣留了一些船舶，理由是船上装载的圆木是非法货物，除非政府批准,否则不允许出口。这些船舶被印尼政府机构扣留6个月以上，但没有被法院扣留。船东依据战争险保单提出索赔，理由是该扣留不是 “普通司法程序” ，并且印尼政府机构通过勒索的手段，有效地强迫船东支付非法律义务上的费用，这一点也是显而易见的。
以上由 ANDREW LIU & CO.,LTD 编译，应以英文为准！
详细信息请参阅附件。
