5.1 Problem and overview
The assured pleaded as a secondary submission that the war risk was the dominant cause according to NP Clause 2-14. As the court viewed the Team Tango case as being a question of whether the intervention constituted a marine peril or a war peril, there was no need to go into this issue. The approach of the court is also supported by the passage in the Commentary that “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.”(1)Commentary (2019) 58.From this, it may be deduced that in the case of a “double objective” one should always look to the “real character” of the intervention.
However, in the last part of the judgment, the tribunal uses causation terminology when it states that the “main causative factor” was the import of urea contrary to the established import regime of the country, and that the overriding political goal was “too remote”. It is clear that Elephant’s breach of the import regulation was the direct or immediate cause of the detainment. It appears, however, that the ban on import of urea was mainly caused by the authority’s goal of preventing Boko Haram from gaining access to urea as a raw material for making bombs. The tribunal accepted that this constituted an overriding political goal typical for war and times of crisis. It may therefore be argued that the overriding political goal was the cause of the ban that again was the cause of Elephant’s breach, and thus that the detainment was the result of a combination of a war peril and a marine peril. This situation is regulated by NP Clause 2-14, which reads:
If the loss has been caused by a combination of marine perils, cf. § 2-8, and war perils, cf. § 2-9, the whole loss shall be deemed to have been caused by the class of perils which was the dominant cause. If neither of the classes of perils is considered dominant, both shall be deemed to have had equal influence on the occurrence and extent of the loss.
This leads to the question of whether an alternative approach to the situation could be to treat the case as an issue of causation, i.e. as a question of a combination of a marine and a war peril.
This approach is interesting, both because it demonstrates the close relationship between the definition of the perils insured and causation, and because the judgment according to the tribunal was not completely clear and was also questioned afterwards by the assured. It would therefore be of interest to see if another approach could support the tribunal’s decision.
In order to discuss this question, it is necessary first to analyze whether detainment of a vessel as an intervention according to Clause 2-9 sub-clause 1 (b) is a peril or rather constitutes the “casualty” or the “insured event”, see 5.2. Following on from that, the concept of “combination of causes” is then discussed in 5.3, before the Team Tango case is analyzed in light of previous cases with similar causation issues as those of the Team Tango case in 5.4 and 5.5.