7 Some reflections
The amendment of the cover for interventions by foreign states in NP in 2019 was aimed at clarifying the existing regulation. Even so, the Team Tango case illustrates that the distinction between a war risk intervention and a marine risk intervention may be extremely difficult in cases when import regulation is motivated by political considerations of security. This can be the case for many commodities, regardless of the country being in a state of war or in a time of crisis. Import of weapons is normally prohibited, whether or not there is an ongoing war. The main point here appears to be that a breach of a trading regulation is not a war risk, but instead is a criminal offence that normally is covered as a marine risk. This may be deduced from the Commentary when it states that if an overriding political motive is detected this will be decisive, even if the intervention is “formally” based on a regulatory breach; if the legal basis for the intervention clearly is a material regulatory breach, this is not a war risk. However, the question appears clearer if such double motive is analyzed in light of the provisions on combination of causes. It seems fair that if the overriding political motive appears to be the dominant cause, the war risk insurer is liable, whereas if the breach of import regulation is the dominant cause, this is a marine risk situation. In the Team Tango case, the principles of causation as applied in previous cases appear to support the decision by the arbitration tribunal.
Another aim of the 2019 amendment was to strengthen the cover for intervention by foreign states. But this was never meant to provide the assured with the extra cover for war risk losses; the main point was to provide ordinary hull and loss of hire cover for such intervention, to the extent that it was not caused by a war risk. The Commentary to Clause 2-8 here remarks:
The standard cover provided by the Plan is not intended to provide the kind of “political risk” cover that would more fully protect owners of vessels trading to countries that have a more or less dysfunctional political system. Solutions for such vessels are available in the market and it is a matter for the assured to decide what level of more specific cover they deem appropriate. It is not natural to spread this risk over all assureds that do not trade in these areas.(1)Commentary (2019) 44.
Thus, the NP provides a better cover than the UK conditions, in that intervention by a foreign state due to i.a. breach of trading regulation is covered as a marine peril, but it does not extend the cover for losses caused by such interventions.