5.6 Faults by master or crew as marine or war peril
In the extensive case law for the period during and after World War I, it was regarded as clear that any faults or negligence committed by the master or crew relating strictly to their service as seamen, should be regarded as an independent peril which fell within the marine-risk insurer’s area of liability. In this respect international tradition was being followed. As the chances of faults and negligence being committed will, as a rule, be far greater in times of war than in times of peace, because navigation is that much more difficult, this in actual fact meant that the marine-risk insurer had also to accept a general increase in risk, owing to the war situation.(1) Motiver NMIP 1964 p. 18, Commentary NMIP 1996 Version 1999 p. 41, Brækhus/Rein pp. 64–65.
The problem is more difficult if the fault or negligence of the crew is more closely tied to the war peril. An example of this is Rt. 1921 p. 424 Solglimt:
The vessel Solglimt was on a voyage from Fredrikstad to Buenos Aires when the crew 10 August observed what they thought was a torpedo sent from a submarine. The torpedo did not hit the vessel, but went under the hull and continued on the other side. The crew abandoned the vessel in the lifeboats and left the area. The vessel was never found. The question was whether the loss of the vessel should be covered as a marine peril or as a war peril.
The Supreme Court found it most likely that the crew had misjudged the situation and that Solglimt had not in fact been attacked by a submarine. The war risk insurer could not be liable for a peril unless it was proved that the peril was a war peril. It was understandable that the crew went into the life boats to assess the situation, but it was negligent to leave the area and the vessel. This negligence was assessed as a marine peril.
The judgment is criticized in legal theory,(2) Brækhus/Rein p. 65. and it appears that the Commentaries to the later Plans argue that faults tied to the war situation should be regarded as a war peril:(3) Commentary NMIP 1996 Version 1999 p. 41. See also Motiver NMIP 1964 p. 18.
“However, it is conceivable that faults or negligence on the part of the master or crew must be covered by the war-risk insurer, viz. where such fault or negligence is very closely bound up with the war peril or consists in a misjudgement of this peril. It is, for example, conceivable that the officers are exhausted after having been subjected to the pressure of war for a long period of time and, as a result thereof, make a clear navigational error, or that the crew leaves the vessel under the misapprehension that there is an impending risk of war (cf. the “Solglimt case”, Rt. 1921. 424). In practice, it is also conceivable that the reasons given for the judgment will be that the crew’s conduct in the given circumstances must be regarded as excusable; in other words, that no actual “fault or negligence” has been committed.”