1 Introduction and overview
The topic of this article is marine insurance cover for the detainment of vessels by a foreign state, as illustrated by a recent Norwegian arbitration case – the Team Tango case.(1) Arbitration award from 10 April 2019. The arbitration tribunal consisted of previous Chief Justice of the Supreme Court Tore Schei (chairman), previous Supreme Court Justice Karin Bruzelius and professor Trine-Lise Wilhelmsen. The award is currently unpublished, but will be published in Nordiske Domme i Sjøfartsanliggende. The award is written in Norwegian, but is partly translated by the author for use in this article. It is well known that vessels entering foreign ports may be detained by the governing state, with or without an accepted legal basis for making such intervention. This may prevent the vessel from leaving the port and so lead to delay, resulting in loss of income under the vessel’s freight contract. Detainment may also lead to damage to the vessel, and, if the vessel is not freed from the detainment, in the vessel being lost. The question will then be whether such delay, damage and total loss are covered under the vessel’s hull and loss of hire insurance. Unfortunately, this issue has gained importance in recent years, because states have arrested foreign vessels in their ports on dubious legal bases and then detained them for lengthy periods, even ending up confiscating the vessel. The question of insurance cover for this peril is therefore an important issue for both the ship owners and the insurance community.
This question was on the agenda when the Nordic Marine Insurance Plan 2013 was amended in 2019.(2) The Nordic Association of Marine Insurers (Cefor), ‘The Nordic Marine Insurance Plan 2013, Version 2019’ < http://nordicplan.org/The-Plan/> (accessed 21 October 2021). A principal concern with this amendment was to extend the cover for intervention by foreign states, and also to clarify issues that had been disputed in the previous versions.(3) Trine-Lise Wilhelmsen, ‘Cover for Intervention by State Power in the Nordic Plan from 2019: a Fair and Timely Compromise?’ (2018) JIML 24, 354-368; Trine-Lise Wilhelmsen, ‘Marine Insurance for Intervention by State Power’ (2019) MarIus 519, 151-198. However, even with this amendment, the question of insurance cover for state intervention is difficult. This is illustrated by the arbitration award concerning the vessel Team Tango. Team Tango was insured under the
Nordic Marine Insurance Plan 2013 Version 2016, but the regulation of the disputed issue is similar to the regulation under the 2019 Plan and demonstrates some of the difficulties involved. The main issue in the Team Tango case was whether the detainment constituted a marine peril or a war peril, see 4 below. However, the assured also submitted that there was a combination of war peril and marine peril, and the case illustrates the relationship between the concept of peril and issues of causation in this situation, see 5 below. Furthermore, it is interesting to see how the case would have been solved under the UK conditions, see 6 below.
Before we address these questions, it is first necessary to give a presentation of the Nordic Marine Insurance Plan in 2, and then outline the amendment of the cover for intervention by foreign states in 3.