“US$5,000,000 in the annual aggregate and in all…”
“Limit US$5,000,000 per event”
“This insurance does not cover any loss arising from…Deterioration of market and/or lack of support for any scheduled cruise unless as a direct result of an insured event.”
“The events of September 11 at the World Trade Center, the Pentagon and Somerset, Pennsylvania, serve as a cruel reminder of the continuing threat from terrorists and extremist groups to Americans and American interests worldwide. The situation remains fluid and American citizens should be aware of the potential risks and to take these into consideration when making travel plans… “As the U.S. Government has reported in Public Announcements over the last several months, U.S. citizens and interests abroad may be at increased risk of terrorist actions from extremist groups…[W]e continue to be concerned about information we received in May 2001 that American citizens may be the target of a terrorist threat from extremist groups with links to Usama Bin Laden’s Al Qaida organisation. In the past, such individuals have not distinguished between official and civilian targets. We take this information seriously… “U.S. citizens are urged to maintain a high level of vigilance and to increase their security awareness…”
“The U.S. Government remains deeply concerned about the security of Americans overseas. On October 7, 2001, the U.S. Government initiated military action pursuant to its inherent right of self-defence recognised in Article 51 of the United Nations Charter, after the events of September 11 in the United States. As a result there is a potential for strong anti-American sentiment and for retaliatory actions to be taken against U.S. citizens and interests throughout the world by terrorists and those who harbor grievances against the United States. The Department urges Americans to review their circumstances carefully and to take all appropriate measures to ensure their personal safety…”
“There can in my judgment be no realistic argument with the proposition that Silversea’s business was severely and prejudicially impacted by the reaction of, principally, Americans but also travellers worldwide to the events of 11 September and to the warnings which followed as to the likelihood of further attacks on “western”, specifically American interests and as to the need to exercise caution both at home and overseas…The response of the American people to these events is too well documented to require description by me…It is inevitable that Silversea’s business would be affected at the very least in the short and medium term. Mr Pradeep Bajaj is and was the Chief Financial Officer of Silversea. He gave evidence before me at great length and his integrity was called into question. However he was entirely accurate when he said [in a claim letter of9 November 2001 ]:- “Simply put, at present a significant portion of our regular customer base is afraid to make reservations for a number of our previously scheduled itineries.”
“These voyages [of the Cloud] had to be cancelled because: (i) as a result of 9/11, cancellations of bookings for cruises and reduction of business were such that Silversea had insufficient bookings to employ all four vessels and it was therefore necessary to lay up one of the vessels. It was decided by Silversea to lay up one of the older vessels which had not been recently refurbished, the SILVER WIND. That vessel has been laid up since2nd November 2001 and is likely to have to remain laid up until the end of May 2003; (ii) cruises which should have taken place on the SILVER WIND during the period of lay-up did not take place on the SILVER WIND, but on the SILVER CLOUD instead, beginning on or about20th December 2001 . The decision was taken to use the SILVER CLOUD to perform the SILVER WIND’s cruises because the SILVER CLOUD was a more modern vessel and the cruises which had been due to take place on the SILVER CLOUD included destinations in the Middle and Far East (in relation to which substantial numbers of cancellations occurred as a result of 9/11); (iii) accordingly, those cruises which were scheduled to take place on the SILVER CLOUD could not (and did not) take place.”
“For present purposes I am asked not to decide and I need not decide whether that over-capacity was something which Silversea had identified prior to 11 September as requiring a reduction to a three ship fleet, whether temporary or permanent or whether it was a consequence of the undoubted downturn in demand following the events of 11 September.”
“The last point highlights a third difficulty which was not resolved at trial because it was common ground that, in the light of his findings on construction, the learned judge did not need to address it at this stage…If the learned Judge were wrong on construction, there would need to be remission to address these points after further expert evidence.”
“Those voyages were not cancelled because of any perception that the places which were to be visited were unsafe. It is true that the Silver Cloud was due to visit some eastern Mediterranean, Red Sea and Gulf of Aden ports in late 2001. The Silver Shadow in fact visited all of these ports only weeks after 11 September. The Silver Cloud was not due to visit the eastern Mediterranean or Africa at all in 2002, although she ended up doing so as a result of assuming Silver Wind’s itinerary. The Silver Cloud was due to spend 2002 in the Far East, Australia and New Zealand. Those places were not perceived to be unsafe on account of terrorist activity. It was the case that passengers joining those voyages from the USA would need to undertake long haul flights which they might be reluctant to do in the aftermath of 11 September. But joining other cruises in other parts of the world could involve flights of comparable or virtually comparable duration. In any event if anything this point merely serves to underscore that there was no interference with the scheduled itinerary of the vessel herself, which is the touchstone. The Silver Cloud schedule was cancelled because, by the time the decision was made, Silversea had concluded that it would have over-capacity in 2002.”
“As I have already remarked the claim now put forward is radically different from that which had gone before. It is a trite observation that difficulty in formulating a claim under an insurance policy is sometimes indicative of the fact that the policy does not afford indemnity in respect of the circumstances which have occurred.”
“Suppose that a relevant warning or warnings has negative impact only upon actual or prospective bookings for one of the vessels because it alone was due to travel to the region affected by the warning. Suppose also that all of the passengers who elect not to travel on the vessel in question transfer their bookings or make bookings on other ships in the fleet, causing those vessels to achieve load factors substantially in excess of what was forecast. I do not believe that the individual owning company of the “unpopular” vessel could maintain a claim without there being brought into account the enhanced revenue earned by the other individual ship owning companies…”
“…because it never crossed the mind of Mr Olsen, Mr Cheney or Mr Macmillan-Bell that anything more than a single overall policy limit was under consideration. Nonetheless I have on reflection concluded that, by their exchanges on the topic of the single premium for section Aii, which was in such sharp contradistinction to their approach on section Ai, the underwriters and the brokers gave outward expression of a common albeit unstated intention that this should reflect a single policy limit in a manner which made it plain, applying an objective test, that this was what they wished to achieve by the policy. Had it been necessary therefore I would have ordered rectification…”
“Mr Lee and Mr Mitchell plainly agreed that the Oct. 3 addendum should be deleted from the slip policy. We do not believe that either of them gave precise consideration to the effect of this deletion. It may be that Mr. Mitchell assumed that it would relieve the insurers from all risk arising from vandalism, sabotage and malicious mischief. It may be that Mr. Lee had a similar belief. If they both shared that belief this would not establish a claim for rectification of the policy.”
“An ascertained net loss is, whatever else it might be, an actual loss, here to be calculated by reference to a finite period of six months. Silversea’s calculation would claim from underwriters as an actual loss the shortfall in the value of bookings which customers might ordinarily have been expected to have made by the end of, say February 2002 for cruises departing in, say, October 2002, notwithstanding it might be demonstrable by the time of departure of the cruises that the same load factors had been achieved as were reliably forecast before the events of 11 September…It seems to me that the six month limit inserted into the body of section Aii is simply intended to be an arbitrary, but agreed, cut off point…Silversea may recover the difference between the net income which it could have expected to have earned over a six month period and the net income which it in fact earned over that period…The accounting convention that income referable to a cruise is deemed earned on the day of sailing overcomes any potential problem of attribution in respect of cruises which span the beginning and end points of the nominated six month period.”
“I also note in passing that since, as I find, and as was common ground between the two experts, the events of 11 September and the warnings were concurrent causes of the downturn in bookings, including cancellations thereof, and since the consequences of the events of September 11 are not for the purposes of section Aii excluded from the ambit of the cover, as opposed to being simply not covered, a claim under the policy must lie – see Wayne Tank and Pump Company Ltd v. EmployersLiability Assurance Corporation Ltd[1974] 1 QB 57 . I am not sure that, on this hypothesis, insurers contend to the contrary.”
“18. Where a policy provides cover against one of two or more concurrent causes of a casualty, a claim will lie under the policy provided that there is no relevant exclusion. Where, however, a policy contains an express exclusion of cover in respect of loss resulting from a specified cause, underwriters will be under no liability in respect of a loss resulting from that cause, notwithstanding the fact that there may have been a concurrent cause of the loss which falls within the cover. The effect of an exception is to save the insurer from liability for a loss which but for the exception would be covered. The effect of the cover is not to impose on the insurer liability for something which is within the exception… per Lord Justice Cairns in Wayne Tank & Pump Co. Ltd. v. Employers Liability Assurance Corporation Ltd., [1973] 2 Lloyd’s Rep. 237; [1974] 1 Q.B. 57.”
“At paragraph 36(2)(b) of its Consolidated Document…Silversea pleads:- “In the alternative and without prejudice to its primary case, Silversea will claim the per diem rate from the claimant under section Ai.”
“Fourthly, the learned Judge appears to have overlooked that Silversea did claim under Section Ai in the alternative on the basis of per diemlosses (which was indeed the way in which the claim had originally been formulated and pleaded). Therefore, to the extent that the claim under section Ai should fail because it could not be formulated on a per diem basis, this was wrong. It was not that the claim could not be formulated on that basis, rather that the calculation of the damages on a perdiem basis was not appropriate, since it led to Silversea recovering more than its true losses.”
“Methods of pursuing political aims and of waging an armed struggle do not stand still. A situation existing today might fall outside a definition formulated in the past, not because the Judge or scholar who proposed it considered that the situation should be excluded but simply because the possibility that it might exist had not crossed his mind…The same comment applies to a collection of materials relating to Public International Law…The words under construction are to be given their ordinary business meaning, which is not necessarily the same as the one which they bear in Public International Law. The statements of jurists are a useful source of insights, but they do not provide a direct solution...”