5.3 The regulation of combination of perils
NP Clause 2-14 states that losses caused by a combination of perils “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 an equal influence on the occurrence and extent of the loss, cf. Clause 2-14 second sentence. The starting point is therefore that the whole loss shall be attributed to the “dominant cause”, even if caused by a combination of perils. The concept of “cause” means that the peril must be a necessary condition for the casualty.(1)Brækhus and Rein (n 4) 254; Bull (n 46) 244; Trine-Lise Wilhelmsen, ‘Årsaksprinsipper og tolkningsprinsipper i forsikringsretten’ (2011) TfE 4, 228-258, 235; Wilhelmsen and Bull (n 4) 116.This means that the overriding political goal of controlling the import and use of urea must be a necessary condition for the detainment to be caused by a war peril.
The expression “combination of perils” applies first and foremost to the situation where there is a combination of two independently acting causal factors which result in a casualty. However, the expression also includes the situation where the first cause is a necessary condition for the second cause to occur.(2)Wilhelmsen and Bull (n 4) 119. See also Commentary (2019) 83-85; Ole Steen-Olsen, ‘Om adækvans og samvirkende skadesårsager ved forsikring mod tidstab’ (1977) TfR 90, 230–280, 260. The terminology is also presumed in ND 1989.263 NA Scan Partner.This appears to be situation here, where the overriding political goal to prevent Boko Haram from gaining access to urea caused the ban on the import of urea, and the ban on import was a necessary condition for Elephant’s breach. As Elephant did have permission to import urea before the ban, it is presumed that such permission would have been obtained if the authorities had not prohibited the import.
The starting point in Clause 2-14 is that the dominant-cause rule shall apply. This is in line with the general approach in Norwegian insurance law and means that the loss shall be attributed to the cause that is “dominant” or “main”, i.e. carries most weight in the chain of events.(3)Commentary (2019) 80; Wilhelmsen (n 52) 239; Wilhelmsen and Bull (n 4) 117.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 loss. The natural understanding of the expression “dominant cause” is that a relatively considerable predominance is required, in order to characterize a peril as the “dominant cause”.(4)Wilhelmsen and Bull (n 4) 124-125.This is further elaborated on in the Commentary to the provision: ‘It is not sufficient to reach the conclusion – perhaps under doubt – that one peril is slightly more dominant than the other; it is precisely the arbitrary choice between two causes which carry approximately the same weight that should be avoided. On the other hand, a 60/40 apportionment should probably constitute the upper limit for an equal distribution. If we get close to 66 %, one of the groups of perils is after all considered twice as «heavy» as the other ….’(5)Commentary (2016) to Cl. 2-14.
As already mentioned, the provision applies to a situation where the two perils or causes interact in a chain of events leading to the casualty, which appears to be the case in the Team Tango case, where the political security consideration to prevent Boko Haram from access to urea resulted in a ban on import of urea for other than two named Nigerian producers. It also appears however, to be a situation with combination of causes after the casualty had first occurred, since the length of time of the detention was at least partly caused by Elephant’s actions to prevent loading outside Elephant’s control. As the considerations on causation in these two situations are somewhat different, they are discussed separately below.