В публикации рассматривается решение по делу Venetico Marine SA v International General Insurance Co Ltd and 19 Others (The “IRENE EM”) [2013], принятое английским судом. “Опасности и случайности на море”, “ближайшая причина”, “случай” и др. термины, употребленные в Законе о морском страховании 1906 года были истолкованы судом. В особенности, вызывает интерес трактовка отличий полной конструктивной гибели от действительной полной гибели предмета страхования. Особо важен вывод суда о том, что посадка судна на мель относится к категории опасностей и случайностей на море. Это судебное решение, несомненно, является важным прецедентом. Да и цена вопроса была довольно высока. Дело в том, что судно “IRENE EM” первоначально было застраховано на USD 12 млн. и дополнительно на USD 6 млн., так что общая сумма страхового возмещения составила более USD 18 млн.
In Venetico Marine SA v International General Insurance Co Ltd and 19 Others (The “IRENE EM”) [2013], the High Court held that a vessel which had grounded was a constructive total loss because the cost of repairs would have exceeded the repaired value – s.60(2) (ii) Marine Insurance Act 1906. The grounding was deemed to be a peril of the seas and a proximate cause of the damage to the vessel, the damage being consequently covered by the owner’s insurance policy.
Facts
The “IRENE EM” was insured under hull and machinery policies with an agreed total value of USD 12 million, incorporating the Institute Time Clauses – Hulls 1/11/95 (ITCH), while further policies provided cover for an additional USD 6 million. Clause 6 of ITCH states, inter alia, that “This insurance covers loss of or damage to the subjectmatter
caused by… perils of the seas…”
The vessel grounded in the Gulf of Khambhat, just off her discharge port of Dahej, India. The grounding was not noticed by the crew at the time of the incident. Once discovered, the crew tried unsuccessfully to refloat the vessel using the main engine, although she later refloated on the next high tide. She was able to berth and to discharge her cargo, but significant damage to the vessel was subsequently discovered. The claimant and Owner (Venetico) gave notice of abandonment and sold the vessel for scrap. She was dismantled soon afterwards.
Claim for relief
Venetico sought damages on the basis that the “IRENE EM” was an actual total loss (ATL) or, alternatively, a constructive total loss (CTL), and that such damage had been proximately caused by a peril of the sea.
The underwriters contended that Venetico had not proved how the grounding had occurred; that the level of damage had been exaggerated; and that the vessel was neither an ATL nor a CTL as, it was alleged, she could have been repaired for less than USD 12 million (her agreed value under the hull and machinery policy).
Decision
Smith J held that the grounding, or alternatively the action of the ocean’s currents, was a peril of the seas. The currents had caused the grounding, and it was irrelevant whether or not they were to be expected. The grounding was held to be a fortuity as it would not have been inevitable, whether because of the state of the engines or for any other reason.
The grounding, or the action of the current, was held to be a proximate cause of the damage, the standard required under s.55(1) of the Act. A proximate cause is one which is proximate to the loss in terms of “efficiency”, not the cause that is the last in time before the loss. The causal impact of e.g. the Master and crew’s negligence (in failing to notice the dragging anchor or to keep a proper look out) was not so potent as to displace the action of the current as the proximate cause of the damage.
The vessel was held not to be an ATL as it was still physically and legally possible to repair the damage, even if it would have been prohibitively expensive to do so. However, Smith J accepted that the estimated cost of repairs would have exceeded USD 12 million. As such, the vessel was held to be a CTL.
Judgment was therefore entered for the claimant, who was awarded USD 18 million plus statutory interest, subject to giving credit for the proceeds of selling the vessel as scrap.
Comment
Although the case largely turns on its particular facts, it provides useful commentary on the interpretation of the terms “perils of the seas,” “proximate cause” and “fortuity,” as employed in the Act. Of particular note are the judge’s obiter comments that grounding itself, and not just the strong currents causing it, is deemed to be a “peril of the seas.” It was also noted that a current could be a “peril of the seas” whether or not it was anticipated. The tests for actual total loss and constructive total loss are also re-stated and discussed in the decision.
Автор: Peter Ward
Источник: http://sites.clydeco.vuturevx.com/34/2673/uploads/5.pdf