“Recommended anchoring position to be around the following area: Lat: 01.25N / Long: 104.34E.”
“… AGREED VALUES CLAUSE It is hereby specified that the agreed value of the vessel is admitted, whatever any fluctuation in the market value during the policy period, with the parties reciprocally waiving any other valuation. No proportional rule shall therefore be applied by the Insurers … American Institute Hull War Risks and Strikes Clauses … For Attachment to American Institute Hull Clauses December 1, 1977 … This insurance, subject to the exclusions set forth herein, covers only those risks which would be covered by the attached Policy … in the absence of the WAR, STRIKES AND RELATED EXCLUSIONS clause contained therein but which are excluded thereby … EXCLUSIONS This insurance does not cover any loss, damage or expense caused by, resulting from, or incurred as a consequence of: … e. Arrest, restraint or detainment under customs or quarantine regulations and similar arrests, restraints or detainments not arising from actual or impending hostilities … Warranted not to abandon in case of capture, seizure or detention, until after condemnation of the property insured. … ADDENDUM TO AMERICAN INSTITUTE HULL WAR RISKS AND STRIKES CLAUSES - DECEMBER 1, 1977 (APRIL 1, 1984) It is understood and agreed that the American Institute Hull War Risks and Strikes Clauses of December 1, 1977, for attachment to American Institute Hull Clauses (June 2, 1977), and to which this Addendum is attached are amended as follows: … 3. In the event that the Vessel shall have been the subject of capture, seizure, arrest, restraint, detainment, confiscation or expropriation, and the Assured, by reason thereof, has lost the free use and disposal of the Vessel for a continuous period of [six (6)] months (even though condemnation has not occurred), then for the purposes of ascertaining whether the Vessel is a constructive Total Loss, the Assured shall be deemed to have been deprived of the possession of the Vessel without any likelihood of recovery. … 5. The Warranty at line 42 shall be amended to read: “Warranted not to abandon in case of capture, seizure, arrest, restraint, detainment, confiscation or expropriation until after condemnation of the property insured or, in circumstances set forth in 3. above, after [six (6)] months, whichever first occurs … It should be noted that the 12 month detainment period in Clause 3 of the Addendum was expressly amended by the Policy to 6 months in the case of the Vessel and certain other vessels save in cases of piracy where it remained as 12 months. ALL OTHER TERMS, LIMITATIONS, CONDITIONS AND EXCEPTIONS REMAINING UNCHANGED”
“ASSURED … If claim is made under the Policy by anyone other than the Owner of the Vessel, such person shall not be entitled to recover to a greater extent than would the Owner, had claim been made by the Owner as an Assured named in this Policy. SUE AND LABOR And in case of any Loss or Misfortune, it shall be lawful and necessary for the Assured, their Factors, Servants and Assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the Vessel, or any part thereof, without prejudice to this insurance, to the charges whereof the Underwriters will contribute their proportion as provided below. And it is expressly declared and agreed that no acts of the Underwriters or Assured in recovering, saving or preserving the Vessel shall be considered as a waiver or acceptance of abandonment. In the event of expenditure under the Sue and Labor clause, the Underwriters shall pay the proportion of such expenses that the amount insured hereunder bears to the Agreed Value, or that the amount insured hereunder (less loss and/or damage payable under this Policy) bears to the actual value of the salved property, whichever proportion shall be less; provided always that their liability for such expenses shall not exceed their proportionate part of the Agreed Value …”
“It has been customary for vessels waiting for orders to anchor in waters around the island of Bintan but it should be noted these waters are within Indonesian territorial limits. Recently the Indonesian Navy has begun to detain vessels for "illegal anchoring". Local regulations require that, when a vessel is located within territorial waters, it must be cleared in and out of Indonesia. This also applies if the vessel is only anchored and has no intention of 'interacting' with Indonesia, such as cargo operation, taking supplies, crew change, etc. An agent must also be appointed. Spica Services advise that they are dealing with 20 cases at present with vessels under arrest/ investigation for violating the regulation by not reporting to the Harbour Master's office when planning to anchor inside Indonesian territorial waters. For many years it has been a common practice of Masters to anchor in this region without any action being taken by the Indonesian authorities. This has recently changed with local authorities now rigorously enforcing the regulation, violations of which can lead to a fine as well as extensive delay to the vessel and may even be considered to constitute a criminal act.”
“Absent knowledge of the Indonesian Navy’s campaign, the risk of illegal anchoring in Indonesian waters leading to adverse consequences for the vessel could fairly be assessed as small in early February 2019, which is no doubt why it was within the range of ordinary practice to anchor in this locality. But it does not follow that it was ‘good navigation and seamanship’ to court a small danger of suffering consequences of illegal anchoring for no good reason, even if it was ordinary practice. In another field, many cars as a matter of ordinary practice drive down the motorway at 71-75 miles an hour, because the drivers consider that there is little or no chance of being penalised for exceeding the speed limit slightly, even though they appreciate they are breaking the law. If an objective prudent observer was asked if this was an exercise of ‘good’ driving, the obviously correct answer would be ‘no’.”
“(a) The insurer is not liable for any loss attributable to the wilful misconduct of the assured, but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence of the master or crew; … (c) Unless the policy otherwise provides, the insurer is not liable for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject-matter insured, … or for any injury to machinery not proximately caused by maritime perils.”
“But it was still necessary to show that the detention was fortuitous. How to characterize the element of fortuity in this context is not easy. If the owners had asked themselves at the time of placing the cover or at the time of making the charter-party whether detention for any substantial period after loading a cargo at Bandar Abbas was to be anticipated or likely to occur in the ordinary course, they would have correctly answered that it was not. But on the other hand, where a situation comes about as a result of the voluntary conduct of the assured, it would not normally be described as fortuitous. It did not happen by chance but by the choice of the assured. Put another way, it would be in the ordinary course that, if the owners of a vessel do not pay the port dues for which they are liable to the port authority in respect of the stay of the vessel in that port (or provide acceptable security), the vessel will not be cleared. For the purposes of the law of insurance, in the absence of an express agreement to the contrary, a policy should not be construed as covering the ordinary consequences of voluntary conduct of the assured arising out of the ordinary incidents of trading; it is not a risk.”
“Art 193 (1) During sailing, Masters must comply with the provisions related to: a. trafficking procedure; [scil. traffic] b. shipping lanes; c. route system; d. area of shipping of ship traffic; and e. Shipping Navigation Aid Means. … Art 219 (1) Each sailing ship shall have a Sailing Consent Letter issued by a Harbourmaster. …”
“It is the duty of the assured and his agents, in all cases, to take such measures as may be reasonable for the purpose of averting or minimising a loss.”
“… if after the advent of an insured peril or when the advent of an insured peril was obviously imminent the assured or his agent failed to act to avert or minimize loss in circumstances where any prudent uninsured would have done so, the chain of causation between the insured peril and the loss will be broken. Clearly if the insured peril is not the proximate cause of the loss the assured cannot recover.”
“The First and/or Second Claimants and their agents initiated and pursued a series of contacts with the Indonesian authorities with a view to exploring whether a “settlement” with the Navy, on a “commercial” basis or by paying “fines” that might be paid without going through an official court process, was possible. Any such payment, had it been made, would not have been an official or lawfully imposed fine, but would have been a bribe or similar thereto, and it is to be inferred that the First and/or Second Claimants were aware that that would be the case.”
“at least knowing if that is the end of the road, it’s better to know it than not to know it.”
“It seems to me that what will constitute [conduct breaking the chain of causation] is so fact-sensitive to the facts of any case where the issue arises that it is almost impossible to generalise. If one must do so, I would say that it must be some unreasonable conduct, not necessarily unforeseeable…, a new cause coming and disturbing the sequence of events…, not necessarily reckless…, which may result from an accumulation of events which in sum have the effect of removing the negligence sued on as a cause…, which accumulation of events may take place over time.” (Emphasis added.)
“26A.1 In 2014, the Greek authorities detained the “NOOR 1” on arrival from the United Arab Emirates in what was apparently one of the largest ever intercepted heroin shipments to Europe (the “Heroin Shipment”). 26A.2. In or about late March 2018, the Piraeus Public Prosecutor’s Office brought a criminal prosecution against, among others, Mr Evangelos Bairactaris, a director of the First Claimant, related to the Heroin Shipment (the “Criminal Prosecution”). 26A.3. The Criminal Prosecution charged Mr Bairactaris with the following in connection with the Heroin Shipment: 26A.3.1. forming and becoming a member of an organised crime group contrary to Article 187 paragraph 1 of the Greek Criminal Code, a felony under Greek law which carries a sentence ranging from five to ten years imprisonment; 26A.3.2. being involved in the trafficking of narcotic substances contrary to Article 23 paragraph 2(a) in combination with Article 20 paragraph 2 and Article 22 paragraph 2(b) of Law 4139/2013 and Articles 45 and 98 paragraph 2 of the Greek Criminal Code, a felony under Greek law which carries a sentence ranging from ten years to life imprisonment and a fine between€50,000 and€1 million . 26A.4. The Criminal Prosecution was still pending as at29 June 2018 .”
“only what is known to one or more of the individuals who are - (a) part of the insured’s senior management, or (b) responsible for the insured’s insurance.”
“captures those individuals who play significant roles in the making of decisions about how the insured’s activities are to be managed or organised. In a corporate context, this is likely to include members of the board of directors but may extend beyond this, depending on the structure and management of the arrangements of the insured.”
“[74] … When account has to be taken of a non-disclosure, the issue moves from the world of actual fact into the world of hypothesis. The non-disclosure is an actual fact, and the hypothesis is what effect disclosure would or might have had on a prudent underwriter (the issue of materiality)and what effect disclosure would have had on the actual insurer (the issue of inducement). I do not at present see why the hypothetical world is one in which the assured is assumed to have made the disclosure but not assumed to have provided true information about the settlement of the earlier accident as a no fault accident. On that basis, the non-disclosure of the speeding conviction could not have been material because it could not have induced a re-rating. … [77] Ultimately the issue seems to be: who takes the risk that the true facts as of the time of contract, conclusively established by the time of contract, do not support the right to avoid? I do not see why, subject to estoppel or other such defences, the answer should not be in favour of the insured. However, because there was no citation of authority and I am not sure that there is any event a case on all fours, I emphasise that my opinion is expressed with caution.”
“In evaluating the underwriters’ evidence it is important to keep firmly in mind that all their evidence is necessarily hypothetical and that hypothetical evidence by its very nature lends itself to exaggeration and embellishment in the interest of the party on whose behalf it is given. It is very easy for an underwriter to convince himself that he would have declined a risk or imposed special terms if given certain information. For this reason, such evidence has to be rigorously tested by reference to logical self-consistency, and to such independent evidence as may be available.”
“… it should not be open to an insured to say that it would have complied with any term which the insurer would have imposed (for example, an exclusion or warranty) and so the loss should be covered. During consultation, the example was put to us of a business which keeps its vehicles in an area which has suffered a series of thefts of commercial vehicles. The business fails to disclose this and a vehicle is stolen. The insurer responds that had this information been properly disclosed it would have required the vehicles to be parked in a secure location, which the business says it would have done if this term had been imposed. Consultees were rightly concerned about the circularity of such arguments.”
“If the insurer would have entered into the contract, but on different terms (other than terms relating to the premium), the contract is to be treated as if it had been entered into on those different terms if the insurer so requires.”