Identifying the cause of damage in marine insurance cases

28 Ноя

В статье рассматривается весьма интересное и важное дело European Group Ltd and Others v. Chartis Insurance UK Ltd [2012] EWHC 1245 (Comm), в котором были рассмотрены очень острые вопросы гражданской ответственности за убытки в связи с несохранной мультимодальной перевозкой грузов, осложненные отношениями страхования. Суд рассмотрел следующие вопросы:

— когда причинено повреждение грузу: до или после момента поставки;

— какова непосредственная причина повреждения груза;

— не были ли убытки вызваны внутренними пороками вещи, которые могут привести к ее повреждению, так что такие убытки обычно не подлежат страховому возмещению.

In European Group Ltd and Others v. Chartis Insurance UK Ltd [2012] EWHC 1245 (Comm), the English Court had to look at the thorny issue of the point of time when damage to a cargo occurred, where there were competing explanations.

The facts of the case are as follows: 14 économiser blocks were transported by road from Bucharest to Constanta, and then by ship to Southampton. At Southampton they were stored at the Lakeside Facility, where fatigue crack damage was discovered through gas tests prior to commissioning.

By then, the blocks had been on the Lakeside site for 3-6 months. It was common ground that the fatigue cracking was caused by resonant vibration, which must have occurred between the time they left the factory in Bucharest and the discovery of the cracks on the Lakeside Facility.

The main issues were whether the damage occurred before or after delivery; trying to establish the proximate cause of the damage; and whether the loss was the result of inherent vice. Marine insurers refused to pay out on the basis that the vibration which caused the damage could not have occurred during road and sea transport. It was likely to have resulted from turbulent wind which caused the blocks to vibrate whilst exposed to the elements at the storage facility.

It was held that:

1. Generally where an assured party brought a claim on a marine policy, and the assured and insurer each put forward a rival explanation for the cause of a loss, there were three rather than two possible findings the court might make. It might decide that one or the other explanation was the probable cause on the balance of probabilities. Or, it might be left in doubt because it could not say that one explanation was more probable than any alternative (uninsured) explanation. In those circumstances, the assured’s claim would fail on the burden of proof.

2. Damage during the road transport leg of the journey in Romania, possibly exacerbated by damage during the road leg in England, was a realistic and credible possibility. Although there were gaps in the evidence and uncertainties in some of the applicable science, this was not a case in which such gaps or uncertainty rendered it impossible to reach a conclusion on the balance of probabilities.

There had been sufficient evidence for the court to be able to embark on an informed analysis of the possible causes. On the balance of probabilities, the damage occurred prior to arrival on-site as a result of resonant vibration during transportation from Bucharest.

3. There was nothing in the inherent condition or design of the economisers which could be described as a proximate cause. The case was no different from that of any other vulnerable cargo whose damage during transit was attributable to the inadequacy of its packing, where the insurer had assumed the risk of inadequate packing. The only proximate cause of the loss was resonant vibration during transit resulting from the inadequacy of packing.

It was clear from authorities that where it was established that a proximate cause of the loss was a fortuity occurring during the period of cover, there was no room for inherent vice to be treated as another proximate cause. That was because a loss by inherent vice was a loss caused by inherent characteristics of the cargo not involving any fortuitous external accident or casualty.

Автор: Linda Jacques

Источник: Container Management. — 2012. — November. — P. 41.

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