4.2 The legal starting points(1) The arbitration award (n 1) 9-11.
Clause 2-9 sub-clause 1 (b) contains no reference to “detainment”. The legal basis for war risk cover would therefore be the expression “other similar interventions”. In relation to the interpretation of this phrase, the tribunal referred to the following remarks in the Commentary:
… the term implies a limitation as regards the nature of the interventions covered. The wording is aimed at excluding from the war-risk cover the types of interventions that are made as part of the enforcement of customs and police legislation. …
That difficult borderline problems may arise is demonstrated by two arbitration awards (… relating to the Germa Lionel award and ND 1988.275 NV Chemical Ruby) … These decisions show that cover under the war-risk insurance is contingent on the shipowner being divested of the right of disposal of the ship, the authorities clearly exceeding the measures necessary in order to enforce police and customs legislation, and the intervention being motivated by primarily political objectives. (2) Commentary (2016) to Cl. 2-9 sub-clause 1 letter b.
The tribunal thereafter refers to the 2019 Version, where the expression “provided any such intervention is made for the furtherance of an overriding national or supranational political objective” is added to “similar interventions”. The tribunal referred to the Commentary 2019, stating that this qualification refers to all the interventions that are covered according to Clause 2-9 sub-clause 1 (b), and that these must be delimited against measures necessary to enforce i.a. police and customs legislation. (3) Commentary (2019) 57. The tribunal further referred to the following in the Commentary 2019:
It does not matter whether such police or customs intervention is caused by illegal acts performed by a third party, for instance the charterer or the master or crew. Further, it is not decisive whether the State intervention is based on the legislation of the country or may be seen as abuse of power or corruption, if the intervention does not have an overriding national or supranational political objective. However, if an overriding national or supranational political objective is detected, it does not matter if the State power formally justifies the interventions with for instance police or customs regulations, or if the intervention has the character of abuse of power or corruption.(4) Commentary (2019) 58.
The tribunal stated that cover under the war risk insurance presumes that the peril striking the vessel is a war peril, and that the peril in this case struck the vessel on 29 August 2016 when the vessel was boarded by five marine guards carrying weapons. The fact that the boarding was made by marine soldiers, was not, however, decisive, since detainment of vessels in Nigeria was always made by marine soldiers, regardless of the legal basis for the detainment.
The tribunal further emphasized that the expression “similar interventions” was analyzed in arbitration cases and legal theory, (5)The Germa Lionel award 11 June 1985 (unpublished); ND 1988.275 NA Chemical Ruby; the Wildrake case (a case that was settled); ND 2016.251 Sira; Brækhus and Rein (n 4) 73-76; Wilhelmsen and Bull (n 4) 94-97.and referred to Wilhelmsen and Bull (n 4) 99 summarizing four previous arbitration cases on this question:
This means that the expression «similar interventions» includes interventions made by the State only if the intervention is made for the furtherance of overreaching political goals. In addition, the intervention must normally be typical for war and times of crises and represent a sanction against breach of security rules and/or explained by foreign policy considerations. It is not sufficient that the intervention can be explained by the general political situation in the State. A State intervention which is tied to regulation or control of the normal commerce and shipping is not covered by the war risk insurance. This is true even if there is an abuse of authority, unless the abuse in reality is motivated by overreaching political motives.
The tribunal also refers directly to ND 2016.251 Sira where the arbitrator makes the following summary of the relevant legal sources for the interpretation of the expression “similar intervention”:
For the intervention to be covered under the war risk insurance, the intervention must be made for the furtherance of overreaching political goals. Such interventions are interventions typical for war and times of crises, and can often be explained by foreign policy considerations. The reason for the intervention may be a warranted or not warranted suspicion that the ship has breached rules to protect the security of the State involved. It is not decisive that the general political situation in the State involved has been contributory to the intervention.
A State intervention which is tied to regulation or control of the normal commerce and shipping is not covered by the war risk insurance. Relevant interventions will first and foremost be tied to breach of or suspicion of breach of customs, currency, or police legislation. It is normally not decisive if such intervention due to its duration represents abuse of authority. However, this can be different if the abuse of authority takes the form of a regular police act or similar act, but in reality is part of an action motivated primarily by overreaching political objectives.(6)Here referencing the translation in Wilhelmsen and Bull (n 4) 98.
Lastly, the tribunal refers to a passage from ND 1988.275 NA Chemical Ruby stating that “a common characteristic feature” for an intervention to be covered by war risk insurance is that the intervention is made “for the furtherance of overriding political goals” typical for war and times of crisis, in contradiction to State intervention in connection with regulation and control of ordinary trade and shipping”.
The tribunal concluded that the decisive question is whether the arrest of Team Tango was motivated by overriding political goals typical for war and times of crisis. In order to determine this issue, it was necessary to investigate the security situation in Nigeria and Elephant’s failure to obtain import permission for the cargo.