5.2 Is an intervention by a state a peril or an insured event?
NP Clause 2-8 and Clause 2-9 regulate “perils” covered by insurance against marine perils and war perils respectively. The relevant peril in this case, according to NP 2016 Clause 2-9 sub-clause 1 (b) is “other similar interventions by a foreign State power”, but it is accepted in the arbitration award that the addition in NP 2019 “provided any such intervention is made for the furtherance of an overriding national … political objective” shall be applied. The peril is thus described as a combination of the intervention and the objective for the intervention. If it is decided that the intervention is a war peril, there is no room for analyzing the reasoning behind it as a question of combination of perils. That discussion is already over when determining the “real cause” for the intervention.
This approach is less clear, however, if it is analyzed in light of Nordic terminology on the scope of cover for a marine insurance contract. Nordic marine insurance makes a distinction between the perils insured against, i.e. marine perils and war perils as defined in Clause 2-8 and Clause 2-9, the insured event or casualty, which occurs when the peril strikes the insured interest,(1)NP Cl. 2-11 sub-clause 1: ‘The insurer is liable for loss incurred when the interest insured is struck by an insured peril during the insurance period’.and the damage or loss.(2)Wilhelmsen and Bull (n 4) 78-79. See also Hans Jacob Bull, Forsikringsrett (Universitetsforlaget 2008) 205-209 for the similar terminology in Norwegian insurance law generally.The requirement for causation connects the peril to the insured event, and the insured event to the loss.(3)Wilhelmsen and Bull (n 4) 115-116.
The tribunal states that the peril struck Team Tango when the vessel was boarded in August 2016 and ordered to shift its place of anchorage. The boarding thus constituted the insured event. It should be noted that a peril can strike the vessel before either damage or loss occur.(4)ibid 130 ff.This is the core difference between defining the casualty through the “peril strikes” principle and the “damage occurred principle”, which is the normal rule in Norwegian insurance law.(5)ibid 129-130. See also Trine-Lise Wilhelmsen, ‘Periodisering av Forsikringstilfellet – Finnes det en «Patentløsning»’ (1997) Ånd og rett Festskrift til Birger Stuevold Lassen, 1077ff.; Bull (n 46) 237ff.An intervention of the vessel does not necessarily result in loss of or damage to the vessel, but even so the intervention may still qualify as an insured event. The loss in the Team Tango case was total loss of the vessel defined according to Clause 15-11 sub-clause 1 occurring once the vessel had been detained for 12 months. It was clear that this requirement was fulfilled in this case, as the vessel was detained for more than two years. But if the intervention constitutes the insured event, it may be argued that the relevant peril or cause is the objective behind the intervention. With this terminology, the regulation in Clause 2-8 and Clause 2-9 defines not only the relevant marine and war perils, but also to some extent how the peril must materialize or strike the vessel, i.e. the insured event.(6)Such overlap in insurance clauses is not uncommon, see Bull (n 46) 205-206.
This distinction between the motive as a peril and the intervention as the casualty/insured event is also supported by the relationship between the all risks principle in Clause 2-8, and the regulation in Clause 2-9 sub-clause 1 (b). NP Clause 2-9 sub-clause 1 (b) lists several types of interventions as “perils”, and the same interventions are, according to the Commentary,(7)Commentary (2019) 43. See also Wilhelmsen (2019) (n 3) 185-188 for Version 2016.covered by the all risks principle in Clause 2-8. The same intervention cannot be both a war peril and a marine peril, but it can qualify as an insured event under both insurances, if caused by different perils. The element that determines whether such intervention is covered under marine insurance or war insurance is therefore not the intervention itself, but the reason for it. With this line of reasoning, the peril that makes the distinction between the marine risk and war risk insurance is the motive behind the intervention, and not the intervention itself. A combination of “war related motive” and “marine related motive” can then be addressed as a combination of perils.